HomeMy WebLinkAboutPurchase and Sale Agreement COA and Michael A. Hager and Amy M. Glenz. 31826 102nd Ave SE Auburn, WA 98092 PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT(this"Agreement")is entered into as of the
(off day of A(. 2020 ("Effective Date"), by and between the City of Auburn, a
Washington municipal corporation (the "City" or "Buyer"), and Michael A. Hager, a
married persons selling his separate estate, ("Seller"). Seller and Buyer are collectively
referred to as the"Parties."
RECITALS
A. Seller owns real property located at 31826 102ND Ave SE Auburn,
Washington 98092, also known as King County Parcel No. 333940-0635 ("Subject
property")which is legally described as shown in Exhibit A.
B. The City of Auburn is in need of property in the general vicinity of this
property for future Right-of-Way and Utility purposes.
C. The Seller desires to sell his/her property to the City of Auburn.
AGREEMENT
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 "Subject Property" means the land and all rights, title and interests
associated with the land legally described in Exhibit A as well as all affixed surface
improvements owned by the Seller, improvements above and below the surface of the land
owned by the Seller and all plants, trees, shrubs planted in the ground.
1.2 "Closing" or "Close of Escrow" means the recordation of the Deed in the
Official Records and Seller's receipt of the Purchase Price.
1.3 "Closing Date" means the date which all funds are disbursed to the Seller
and the date of recording of the Statutory Warranty Deed.The Parties agree that the Closing
Date will be October 1,2020, unless otherwise amended in writing.
1.4 "Deposit" means an amount of Five thousand dollars ($5,000), plus any
other amounts designated as a Deposit in this Agreement.
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1.5 "Escrow" means the escrow opened with Escrow Agent for the
consummation of the transaction described in this Agreement.
1.6 "Escrow Agent" means WFG National Title Company, located at: /144
Ramsay Way, Suite 111, Kent,WA 98032.
1.7 "Official Records"means the official real property records of King County,
Washington.
1.8 "Permitted Exceptions"has the meaning as set forth in Section 6.1 below.
1.9 "Purchase Price"has the meaning as set forth in Section 3.
1.10 "Title Company" means WFG National Title Company.
1.11 "Title Policy" means the then current extended coverage ALTA owner's
policy of title insurance issued by the Title Company to Buyer with coverage in the amount
of purchase price,showing title to the Subject Property vested in Buyer subject only to the
Permitted Exceptions.
2. Purchase and Sale. The Buyer agrees to buy, and Seller agrees to sell,the Subject
property legally described in Exhibit "A", on the terms and conditions set forth in this
Agreement. The parties mutually agree that this is a voluntary transaction, entered into
without the threat of condemnation.
3. Purchase Price; Cash Payment. The Purchase Price is Three Hundred Eighty-
Five Thousand Dollars and no cents ($385,000.00), which will be payable in full at
Closing,less the Deposit. 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 Five Thousand Dollars and no cents ($5,000.00) 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 the Seller upon expiration of the Buyer Feasibility period.
5. Due Diligence and Feasibility. Buyer shall have the right for a period of thirty
(30) days from the Effective Date of this Agreement (the "Due Diligence Period") to
conduct Buyer's due diligence and feasibility review, examination and inspection of all
matters pertaining to its acquisition of the Subject property, including such inspections,
tests, and surveys as Buyer deems appropriate to determine the suitability of the Subject
property for Buyer's intended use. Buyer is solely responsible to determine its ability to
use the Subject property for its intended use, and is solely responsible for submitting all
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necessary applications for City, State, and Federal permits necessary to determine
feasibility. If, based upon the Buyer's review, examination and inspection, Buyer
determines in its sole discretion that it intends to acquire the Subject property, then the
Buyer shall promptly notify Seller of such determination in writing("Waiver Notice")prior
to the expiration of the Due Diligence Period and the Deposit will become nonrefundable
(except as otherwise provided herein),and the Parties will proceed to Closing. In the event
that the Buyer fails to deliver such notice to Seller on or before the expiration of the Due
Diligence Period, Buyer will be deemed to be satisfied and to have waived its right to
terminate this Agreement pursuant to this subsection. If Buyer timely and affirmatively
advises the Seller in writing 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 the Buyer. The thirty-day
Due Diligence Period shall start on the day after the Effective Date and shall terminate at
12:00 midnight of the thirtieth day.
6. Title Policy. Promptly after mutual execution of this Agreement, Seller will obtain
an extended preliminary title insurance commitment covering the Property from the Title
Company (the "Commitment") including any additional endorsements or coverage Buyer
may require. The Title Company will be instructed to deliver a copy of the Title
Commitment and copies of exceptions to Buyer,Seller, and the Parties' respective counsel.
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
Property. Unless Buyer gives written notice that it disapproves the exceptions to title
shown on the Commitment, stating the exceptions so disapproved, within ten (10) days
after the date of receipt from the Title Company, Buyer will be deemed to have approved
such exceptions. If Buyer disapproves any title exceptions, Seller will have a ten (10) 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 the
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 the Closing Date. 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 (the "Termination Notice") to
Seller and Escrow Agent given within ten(10)days after the earlier of the expiration of the
Seller's ten (10) day notice period or the date Seller informs Buyer that it does not intend
to remove the disapproved items. 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.
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 Property subject to the following(collectively, the"Permitted Exceptions"):
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7. Buyer's Right of Entry. Buyer, and its agents and consultants, at Buyer's sole
expense and risk, may enter the Property during the term of this Agreement at reasonable
times scheduled in advance with Seller for the purpose of Buyer's due diligence and
feasibility study of the Property. Buyer will (a) exercise care at all times on or about the
Subject property,and(b)take precautions for the prevention of injury to persons or damage
to property on or about the Subject property.Any physical alteration of the Subject property
in connection with Buyer's study will be restored by Buyer immediately upon demand by
Seller,at Buyer's sole expense.Buyer indemnifies Seller against any loss,damage,or claim
resulting from Buyer's inspections and tests. 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 Property 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 with Buyer's actions in the exercise of its right of entry on the
Property and Buyer will maintain all insurance as required by the Seller with respect to
activities on the Subject property.
8. Closing.
8.1 Time for Closing. This purchase and sale will be closed in the office of
Escrow Agent on the Closing Date. Buyer and Seller will deposit in Escrow with Escrow
Agent all instruments, documents and monies necessary to complete the sale under this
Agreement. Funds held in reserve accounts 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.
8.2 Closing Costs.
8.2.1 Seller's Costs. Seller will pay (a) Seller's share of real estate
property tax proration's , if any.
8.2.2 Buyer's Costs. Buyer will pay(a)the full escrow fees and costs, (b)
the recording fees for the Deed; (c)all basic and extended coverage for the Title Policy and
any additional endorsements or coverage Buyer may require, including applicable sales
tax,(d)real estate excise taxes and(e)Buyer's share of real estate property tax proration's,
if any. (f) any fees associated with Seattle/King County Board of Health requirements for
the conveyance of properties serviced by a septic system.
8.2.3 Professional Service Review Fees. Buyer will pay or reimburse
Seller for payment of a professional services fee in an amount not to exceed Seven Hundred
Fifty Dollars ($750.00). The payment of, or reimbursement for any professional services
fee will be paid through escrow at closing.
8.2.4 All other costs and expenses will be allocated between Buyer and
Seller in accordance with the customary practice of King County,Washington.
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8.3 Closing Documents.
8.3.1 Seller's Documents. At Closing,Seller will deliver to Escrow Agent
or have the Escrow Agent create for Seller's execution the following instruments and
documents:
a. The executed and acknowledged Statutory Warranty Deed in the form
attached as Exhibit"B,"conveying the Property to Buyer;
b. The executed real estate excise tax affidavit to accompany the Deed;
and
c. An executed non-foreign person affidavit in the form required under
Section 1445 of the Internal Revenue Code.
8.3.2 Buyer's Documents. At 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; and
b. An executed real estate excise tax affidavit.
8.4 Closing shall be considered complete when all of the following occur:
Buyer makes payment to Seller, purchase of the Title Policy required in section 6, all
encumbrances not acceptable or not waived by Buyer have been cured, the parties have
executed the real estate excise tax and non-foreign person affidavits, and the executed
statutory warranty deed to Buyer is recorded.
8.5 In addition to the acts and assurances recited and contemplated by this
Agreement,the parties agree to perform, execute, and/or deliver any such further acts and
assurances that may reasonably be required to effect the purpose, terms, and conditions of
this Agreement.
9. Possession. Buyers possession of the Property is subject to the Lease Agreement
attached and incorporated hereto as Exhibit D. If Seller provides written notice to
terminate the Lease clause as outlined in Section 14 then Buyer shall take possession upon
closing.
10. Representations and Warranties, and Tree Removal.
10.1 Seller's Representations and Warranties. In addition to any other
representations or warranties of City elsewhere in this Agreement, Seller represents and
warrants to Buyer now, and as of the Date of Closing, that:
10.1.1 Authority. That the 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.
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10.1.2 Hazardous Substances. Seller has not received notification of any
kind from any governmental agency suggesting that the Subject property is or may be
qualify for a Hazardous Substances cleanup; and to the best of 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; (c) has
not been contaminated with any Hazardous Substances, including underground
contamination; and (d) there are no underground storage tanks on the Subject property,
with the exception of an onsite septic tank.
Seller agrees to complete item 6, "Environmental" of Seller's Disclosure Statement,
attached as Exhibit C. Buyer agrees to waive the Seller's Disclosure Statement under
RCW 64.06.010 with the exception of item 6 under RCW 64.06.013.
Seller indemnifies and holds harmless Buyer, its officials,employees,and agents from and
against any and all harm asserted against or incurred by Buyer that results from claims,
demands for remediation, penalties, damages, response costs, or losses that arose due to
the presence before the date of execution of this Agreement of any pollutant or hazardous
substances on the property that was generated on or transported to the property while
owned by the Seller. This indemnity and hold harmless shall survive closing.- g.
10.1.3 Seller warrants that the property is serviced by a v private septic
system, shared septic system, or public sewer system (check one) and to the
best of the Sellers knowledge the system is in good working order. If the property is
serviced by a private or shared septic system Seller will provide Buyer with a copy of the
most recent receipt of servicing/pumping of the septic system along with a copy of the as-
built within 10 days of the Effective Date.
10.1.4 Seller warrants that to the best of Seller's knowledge, there is no
litigation pending or threatened again Seller that arises out of the ownership of the Property
and that might materially and detrimentally affect the (i) use or operation of the Property
for Byer's intended use, or (ii) the ability of Seller to perform its obligations under this
Agreement, or(iii)the value of the Property.
10.2 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 (a) 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; and (b) the individual executing this Agreement on behalf of Buyer has the
authority to bind Buyer to the terms and conditions of this Agreement.
10.3 "As is" condition of Subject property. The Purchase Price reflects that the
Buyer is purchasing the Subject property "as is," "where is," and "with all faults," except
to the extent of representations and warranties specifically made by Seller or in the
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King County Parcel #333940-0635
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Statutory Warranty Deed or other documents to be delivered by Seller at Closing. Seller
agrees that it will not damage nor commit waste on the property between the Effective Date
and the Closing Date.
10.4 Prior to and as a condition to closing,Seller will remove roughly 20 Leyland
Cyprus trees located along the property lines. Each tree to be removed will be identified
with a ribbon or other distinction and agreed to by both parties. Seller will backfill in any
holes left from removing of the trees back to grade level. Seller shall bear all risk of this
condition
11. Maintenance of Subject property; Risk of Loss, Condemnation.
11.1 Maintenance of Subject property. From the Effective Date 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, and damage by casualty excepted.
11.2 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, Buyer will 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 Subject property at all times prior to Closing. Seller shall promptly notify Buyer of any
condemnation or eminent domain proceeding which affects the Subject property. In the
event of any condemnation or eminent domain proceeding by any entity other than City,
or a deed in lieu 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. If Buyer elects to purchase the Property, Seller shall not be liable to restore same,
and Buyer shall be entitled to any condemnation award or payment in lieu thereof payable
to Seller in its capacity as the owner thereof.
12. Default.
12.1 Time of Essence. Time is of the essence of this Agreement.
12.2 Seller's Remedies for Buyer's Default or Failure to Close. If Buyer fails,
without legal excuse, to complete the purchase of the Subject property in accordance with
this Agreement, Seller's sole and exclusive remedies shall be to retain the Deposit as
liquidated damages. Buyer expressly agrees that the retention of the Deposit by Seller
represents a reasonable estimation of the damages in the event of Buyer's default and
failure to close hereunder, that actual damages may be difficult to ascertain and that this
provision does not constitute a penalty. In this respect, Buyer and Seller acknowledge that
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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.
12.3 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
immediate recovery of the Deposit, and to terminate this Agreement or to seek specific
performance, as well as any other remedies at law or equity.
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,or by email at the addresses provided herein. Notice shall
be deemed to have been given upon receipt if personally delivered or sent by email, and if
sent by mail, two (2) days after duly deposited in the U.S. Mail to all of the addresses
designated for such party.
The Parties' respective addresses for notices are as follows:
If to City: City of Auburn
Real Property Management
25 West Main Street
Auburn, WA 98001-4998
Attn: Josh Arndt
Email:jamdt@auburnwa.gov
With copies to: City Attorney's Office
City of Auburn
25 West Main Street
Auburn,WA 98001-4998
Attn: City Attorney
Email: kcomeau@auburnwa.gov, druth@auburnwa.gov
If to Seller: N :Li/la t ticri.Z.✓
31Va6 /-vim
A-W6 tA.( ,\ (A)it 9i30gta
Email: M 1i e c kctct e.v- C'o)Caw4� r ✓1 L C.Ov'1
Notice of change of address shall be given by written notice in the manner detailed in this
Section.
14. Seller Leaseback.
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14.1 Unless Seller notifies Buyer in writing terminating this clause prior to
closing, Buyer as "Lessor" and Seller as "Lessee" shall enter into a Lease of the Subject
property, which Lease will commence immediately following closing. The Lease shall be
in the form attached and incorporated hereto as Exhibit D.Termination of this clause shall
have no effect on the remaining purchase of the Subject Property.
14.2 Seller agrees for TWO THOUSAND DOLLARS 00/100 ($2,000.00) OF
Seller's proceeds to be held as security deposit according to the terms of the Lease
Agreement, Exhibit D, and for all or a portion of those funds to be conveyed to Buyer
consistent with the terms of that exhibit.
14.3 The Escrow Agent is instructed to withhold TWO THOUSAND
DOLLARS ($2,000.00) from the Seller's proceeds as agreed in Section 14.2 above to be
used as the Security Deposit and the purposes therein the Lease Agreement.
Initials Initials itials
15. General.
15.1.Entire Agreement,Waiver, and Governing Law. This is the entire agreement
of Buyer and Seller with respect to the matters covered hereby and supersedes all prior
agreements between them,written or oral. Any waivers must be in writing. No 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. This Agreement will be governed by the laws of
the State of Washington. Venue for disputes under this agreement is the Superior Court of
King County,Washington.
15.2 No Third Party Beneficiaries/Severability. 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.
15.3 Signing Authority. Each of the Parties hereby 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.
15.4 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
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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.
15.5 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
sale of the Subject property.
15.6 Reservation of Police Power. Notwithstanding anything to the contrary set
forth in this Agreement, Buyer 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.
15.7 Amendment. This Agreement may be amended or modified only by a
written instrument executed by Seller and Buyer.
15.8 Construction. This Agreement and each of its terms have been explicitly
negotiated between the parties,and each has had the opportunity for legal counsel to review
the Agreement, so that the language in all parts will be construed according to its fair
meaning and not strictly for or against either party.
15.9 Exhibits. Exhibits A, B, C & D attached is incorporated into this
Agreement.
SIGNATURES
BUYER SELLER
CITY OF AUBURN
Ar
_%/"_iLt
Nancy Bac ayor ichael A. Ham/
'OD* 0/5/Z0 20
Date: Date:
A roved as to Form:
Tam Kendra Comeau,Auburn City Attorney
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EXHIBIT "A"
Legal Description
LOT 6, BLOCK 8. C.D. HILLMAN'S AUBURNDALE ADDITION TO THE CITY OF
SEATTLE, DIVISION NO. 1, ACCORDING TO THE PLAT THEREOF, RECORDED
IN VOLUME 13 OF PLATS, PAGE 62, RECORDS OF KING COUNTY,
WASHINGTON.
SUBJECT TO: MATTERS OF PUBLIC RECORD
King County Parcel Number: 333940-0635
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EXHIBIT"B"
Statutory Warranty Deed
Return Address:
City of Auburn
City Clerk
25 West Main
Auburn,WA 98001
Above this line reserved for recording information.
STATUTORY WARRANTY DEED
Grantor: Michael A.Hager
Grantee: City of Auburn
QSTR: SW-8-2]-5
Parcel Identification Number#(if applicable): 333940-0635
The grantor Michael A.Hager,for and in consideration of Ten Dollars and other valuable
consideration in hand paid,conveys and warrants to the City of Auburn,Washington,the following
described real estate
LOT 6, BLOCK 8. C.D. HILLMAN'S AUBURNDALE ADDITION TO THE CITY
OF SEATTLE, DIVISION NO. 1, ACCORDING TO THE PLAT THEREOF,
RECORDED IN VOLUME 13 OF PLATS, PAGE 62, RECORDS OF KING
COUNTY,WASHINGTON.
SUBJECT TO: MATTERS OF PUBLIC RECORD
situated in the county of King,state of Washington.Dated this day of
(year)
STATE OF )
)ss.
County of )
STATE OF WASHINGTON )
)ss.
County of King )
I certify that I know or have satisfactory evidence that is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he was authorized to execute the instrument and acknowledged it as the Mayor of the City of
Auburn,a Washington municipal corporation,to be the free and voluntary act of such party for the uses
and purposes mentioned in this instrument.
Dated
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Notary Public in and for the State of
residing at
My appointment expires
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EXHIBIT "C"
Seller Disclosure Statement—Environmental
ENVIRONMENTAL DISCLOSURE Yes No. Don't N/A
a Know
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 rill dirt,waste,or other
fill materials?
C Is there any material damage to the property from fire,wind,
floods,beach movements,earthquake,expansive soils,or
landslides? l]��
D Are there any shorelines,wetlands, floodplains,or critical ;
areas on the property? �((l
E Are there any substances,materials,or products in or on the
property that may be environmental concerns,such as
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?
.)c
J Has the property been used as an illegal drug manufacturing
site? \1(
K Are there any radio towers in the area that cause interference
with cellular telephone reception?
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If you answered yes to any of the following please give further details here.
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EXHIBIT D
Leaseback Agreement
RESIDENTIAL LEASE AGREEMENT BETWEEN THE CITY OF
AUBURN AND MICHAEL A. HAGER & AMY M. GLENZ, FOR 31826
102ND AVE SE, AUBURN, WA 98092
THIS LEASE AGREEMENT,hereinafter referred to as the"Lease", is entered into
this , 20 ,by and between the City of Auburn, a Washington
municipal corporation, hereinafter referred to as "Lessor," and Michael A. Hager &
Amy M. Glenz, referred to as "Lessee", collectively referred to as "Parties".
RECITALS:
WHEREAS: The City purchased property located at 31826 102"d Ave SE, Auburn, WA
98092 from Michael Hager, under the purchase and sale agreement dated
WHEREAS:Negotiated as part of the purchase contract(paragraph 14.8) the Seller would
lease the property back from the City on a month-to-month term post-closing.
NOW, THEREFORE, in consideration of their mutual promises set out in this Lease,
Alliance of People with Disabilities and The City of Auburn agree as follows:
ARTICLE 1: PREMISES LEASED
1.1) For and in consideration of the rent and faithful performance by Lessee of the terms
and conditions and the mutual covenants hereof, Lessor does hereby lease to Lessee, and
Lessee does hereby lease from Lessor, a single family dwelling, outbuildings and property
("Subject Property") located at 31826 102nd Ave. SE, Auburn, WA 98092, King County
parcel number 3339400635.
1.2) Use of Premises. Lessee shall only use the Premises as a residence. The Premises
shall not be used to carry on any type of business or trade without prior written consent of
Lessor. Tenant will comply with all laws, rules, ordinances, statutes and orders regarding
use of the Premises.
1.3) Condition and Acceptance of Premises. Lessee acknowledges and agrees that it is
relying solely on its inspection and investigation of the Premises, and accepts the property
"AS-IS, WHERE IS" in its present condition with no warranties of any kind, expressed or
implied, either oral or written,made by Lessor or any employee, agent or representative of
Lessor with respect to the physical condition of the Premises. Lessee shall have determined
to its satisfaction upon its execution hereof that the Premises can be used for the purposes
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it intends. The presence or absence of any hazardous substances, wastes or materials as
defined by State, Federal or Local Law, all of which warranties Lessor hereby expressly
disclaims. Lessor does represent that, to the best of the Lessor's knowledge, without duty
of inquiry, there are no hazardous wastes or materials on, in or under the Premises.
ARTICLE 2: TERM
2.1) The term of this Lease shall be month-to-month beginning on
, 2020, (hereinafter referred to as the "Commencement Date") and
terminate upon Thirty(30) days written notice by either Party.
Lessee has abandoned he property when (1) you are in default for nonpayment of rent, and
(2) evidence indicates an intention not to continue the tenancy, including but not limited to
evidence of removal of your clothes, furniture and personal belongings, or the
disconnection of utilities. Surrender, abandonment, and judicial eviction ends your right
to possess, for all purposes, the Premises, and gives immediate right to the Lessor to
possess the Premises, to determine any security deposit deductions, and remove items left
in the Premises.
ARTICLE 3: RENT AND LEASEHOLD TAX
3.1) Lessee agrees to pay to the City of Auburn monthly rent in the amount of$2,000.00
per month for the Premises. Monthly rent shall be inclusive of the statutory leasehold excise
tax imposed by RCW Chapter 82.29. Rent shall be paid in full on the 1st calendar day of
the month in advance. Rent shall be paid without notice, demand, offset, abatement or
deduction of any kind and delivered to City of Auburn, Attn: Finance Department,
mailing address 25 W Main St., Auburn, WA 98001 and reference Lease—31826 102"
Ave SE. If commencing on a date other than the first (1st) day of the month or terminating
on a date other than the last day of the month then the Rent shall be prorated on a per diem
basis and paid in full and in advance.
3.2) Late Charges -Lessee hereby acknowledges that late payments of Rent or any other
sums due hereunder will cause the Lessor to incur costs not otherwise contemplated by this
Lease. Accordingly, if any installment of Rent or any other sum due from Lessee is not
received by the Lessor within ten (10) days after such amount shall be due, then, without
any requirement for notice to Lessee, Lessee shall pay the Lessor a late charge equal to
12% of the overdue amount. The parties agree that such late charges represent a fair and
reasonable estimate of the costs the Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by the Lessor shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount, nor prevent the Lessor from
exercising any of the other rights and remedies granted hereunder. In addition to the late
charges provided for in this section, interest shall accrue on rent, or any other sums due
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hereunder, at the rate of one and one-half percent (1 and 1/2%) per month from the date
due until paid in full.
3.3) Security Deposit. — Lessee has instructed WFG Title and Escrow ("WFG") to
withhold TWO THOUSAND DOLLARS and 00/100 ($2,000.00) from Lessees sale
proceeds to be held as the Security Deposit in this Lease. Funds held for the Security
Deposit are held as security for the performance by Lessee of the terms under this Lease,
repair of any damages caused by Lessee, Lessee's family,agents,or visitors to the Premises
during the term of this Lease as well as any final utility bills or unpaid rent accrued during
the term of this Lease. Lessee further instructs WFG to use funds held as the Security
Deposit to pay any invoices submitted by Lessor relating to any of the afore mentioned
uses. Any remaining security deposit funds shall be remitted to Lessee within 30 days
following expiration or termination of this Lease.
ARTICLE 4: MAINTENANCE
4.1) Maintenance Responsibilities — Lessee shall in its sole cost and expense maintain
the Premises in good, clean, sanitary condition and repair and free of trash and debris
during the term of this Lease. Lessee shall be responsible at its sole cost and expense to
make all needed repairs to the Premises, fixtures, appliances and equipment therein. Lessee
agrees to notify Lessor immediately if repairs are needed prior to Lessee commencing such
repairs unless the such repairs constitute an emergency at which Lessee shall cause the
repair to commence without prior notification to Lessor. Lessee shall however, notify
Lessor of any emergency repairs undertaken at Lessee's earliest availability. Lessee also
agrees that all repairs undertaken on behalf of Lessee shall be done in a commercially
reasonable manner by a licensed and bonded contractor with all required permits obtained,
and Lessee shall provide proof of receipt for repairs and permits to Lessor immediately
upon completion of the work. Lessee agrees that no painting or additional improvements
will be done on or about the Premises without the prior written consent of the Lessor. In
no event shall the expense and responsibilities of maintenance under this Lease be cause
for abatement of rent, partial or in full.
4.2) Mechanics and Material Men's Liens — Lessee shall not suffer or permit any
mechanic's, material men's lien or other lien to be filed against the Premises, or any portion
thereof, by reason of work, labor, skill, services, equipment or materials supplied or
claimed to have been supplied to the Premises at the request of Lessee,or of anyone holding
the Premises, or any portion thereof, by through or under Lessee. If any such mechanic's
lien or other lien at any time shall be filed against the Premises or any portion thereof,
Lessee,within thirty(30) days after the date Lessee first becomes aware of the filing of the
same, at Lessee's election, shall cause said lien either to be discharged of record or to be
bonded over in a manner which is reasonably acceptable to Lessor. If Lessee shall fail to
discharge such mechanic's lien or liens or other lien or to bond over the same within such
period, then Lessor may, but shall not be obligated to, discharge the same by paying to the
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claimant the amount claimed to be due or by procuring the discharge of such lien as to the
Premises by deposit of a cash sum or a bond or other security, or in such other manner as
is now or may in the future be provided by present or future law for the discharge of such
lien as a lien against the Premises. Any amount paid by Lessor, or the value of any deposit
so made by Lessor, together with all costs, fees and expenses in connection therewith
(including reasonable attorneys' fees), together with interest thereon at the Maximum Rate
of Interest, shall become rent and be repaid by Lessee to Lessor within thirty (30) days
after demand therefor. Lessee shall indemnify, defend and hold harmless Lessor and the
Premises from all losses, costs, damages, expenses, liabilities, suits, penalties, claims,
demands and obligations, including, without limitation, reasonable attorneys' fees,
resulting from the assertion, filing, foreclosure or other legal proceedings with respect to
any such mechanic's lien or other lien.
4.3) Natural Disaster or Act of God—In the event that the Premises is damaged due to
a natural disaster or act of God, if the cost of repairing or reconstructing the Premises to
the condition and form immediately prior to such damage or destruction does not exceed
thirty-three percent(33%)of the then new replacement cost thereof,then Lessor shall effect
such repair, restoration, and reconstruction of the Premises to substantially the same
condition as prior to said damage or destruction in a timely manner. All such work shall be
carried out in accordance with plans and specifications prepared by a licensed architect or
engineer if such an architect or engineer is reasonably required given the scope and nature
of the work.
4.4) If the cost of repairing, restoring or reconstructing the Premises to the condition
and form immediately prior to such damage or destruction exceeds thirty-three percent
(33%) of the then new replacement cost thereof, then Lessor, in its sole discretion may
elect by written notice to Lessee given within thirty (30) days after the date of the damage
to terminate this Lease. If no notice of termination is given then all obligations set forth in
this Lease shall continue, including but not limited to Rent obligations of the Lessee. In no
event shall Lessor be responsible for damage to Lessee's personal property located on or
within the Premises.
4.5) Damage Due to Fire—In the event of damage or destruction due to fire determined
not to have been caused by Lessee then Sections 4.3 and 4.4 above shall apply. If however,
the cause of the fire, as determined by the local Fire Authority is determined to have been
caused by Lessee, one of Lessee's guests, family members or otherwise then the cost of
said repair, restoration, reconstruction or replacement of the Premises shall be borne by
Lessee. Repairs, reconstruction or replacement of the Premises shall be done in a
commercially reasonable manner and with the approval of the Lessor and all obligations
under this Lease, including Rent shall remain in full force during such period of repair,
restoration, reconstruction or replacement.
ARTICLE 5: ENVIRONMENTAL PROVISIONS
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5.1) Lessee covenants to defend, indemnify, and hold Lessor harmless from any
imposition or attempted imposition by any person upon Lessor of any obligation or cost
("liability") of whatever form, including, without limitation, damages; claims;
governmental investigations, proceedings or requirements; attorney fees in investigation,
at trial or administrative proceeding, or on appeal; witness or consultant costs; or any other
liability to the extent that such liability arises from a violation, or from the failure to satisfy
a requirement of any environmental or land use law or regulation, proximately resulting
from use of the Premises during the term of this Lease, and without regard to when the
liability is asserted.
5.2) Lessee has inspected the Premises and accepts it in its present condition. Lessee
shall not cause the premises to be contaminated in any way and in the event of
contamination shall immediately report such contamination to Lessor and shall cause any
such contamination to be remedied by that method recognized by Washington State
Department of Ecology and shall indemnify and hold Lessor harmless from all costs
involved in implementing the remedy.
5.3) Any other provision of this Lease to the contrary notwithstanding, Lessee's breach
of any covenant contained in this Article 5 shall be an Event of Default empowering Lessor,
in addition to exercising any remedy available at law or in equity or otherwise pursuant to
this Lease, to terminate this Lease and to evict Lessee from the Premises forthwith, or to
terminate Lessee's right to possession only without terminating this Lease.
5.4) Lessee shall notify Lessor within twenty-four (24) hours of any release of a
reportable quantity of any hazardous substance (as that term is defined in CERCLA, 42
USC 9601, et. seq. or the Washington Model Toxics Control Act), or of the receipt by
Lessee of any notices,orders or communications of any kind from any governmental entity
which relate to the existence of or potential for environmental pollution of any kind existing
on or resulting from the use of the Premises or any activity conducted thereon. If Lessee
fails to comply with any of the requirements of this article, Lessor may undertake, without
cost or expense to Lessor, any actions necessary to protect Lessor's interest including steps
to comply with such laws.
ARTICLE 6: INSURANCE COVERAGE, INDEMNIFICATION /HOLD
HARMLESS
6.1) Insurance — Lessee acknowledges that the Lessor is not insuring Lessee personal
property or persons and you are solely responsible for damage or loss of personal property
occurring on the Premises . In addition, Lessee agrees to be solely responsible for personal
injury to any guest to the Premises. Lessee agrees to maintain Renters Insurance with
minimum liability coverage of $500,000 and list Lessor as additional insured. Tenant
acknowledges Lessor's insurance does not cover, nor will Lessor purchase insurance to
cover Lessee's personal property damage caused by fire, theft, rain, war, acts of God, acts
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of others, and/or any other causes, nor does it cover tenant's liability.
6.2) Indemnification/Hold Harmless- The Lessee,to the extent permitted by law, shall
defend, indemnify, and hold harmless Lessor, its officers, officials, employees and
volunteers and Lessor's property, including the Premises, free and harmless from any
liability for losses,claims, injury to or death of any person,including Lessee, or for damage
to property arising from Lessee using and occupying the Premises or from the acts or
omissions of any person or persons, including Lessee, in or about the Premises with
Lessee's express or implied consent.
ARTICLE 7: ASSIGNMENT AND SUBLETTING
Lessee shall not assign or sublet the Premises without the written approval of Lessor,which
Lessor may give in its sole and absolute discretion.
ARTICLE 8: UTILITIES
8.1) Lessee shall be responsible for establishing and maintaining direct accounts with
the City of Auburn and any other public or private providers of utilities used in or charged
against the Premises as appropriate and to hold the Lessor harmless from any such charges.
Such utilities shall include but not be limited to: power, water, sewer, storm, garbage,
phone and internet.
ARTICLE 9: NOTICES
Any notice, consent, approval or other communication given by either party to the other
relating to this Lease shall be in writing, and shall be delivered in person, sent by certified
mail, return receipt requested, sent by reputable overnight courier, or sent by other
approved forms of electronic communication (with evidence of such transmission
received) to such other party at the respective addresses set forth below (or at such other
address as may be designated from time to time by written notice given in the manner
provided herein). Such notice shall, if hand delivered or personally served, be effective
immediately upon receipt. If sent by certified mail, return receipt requested, such notice
shall be deemed given on the third business day following deposit in the United States mail,
postage prepaid and properly addressed; if delivered by overnight courier, notice shall be
deemed effective on the first business day following deposit with such courier; and if
delivered by electronic communication, notice shall be deemed effective when sent.
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The notice addresses of the parties are as follows:
If to Lessor: City of Auburn
Real Property Management
25 West Main Street
Auburn, WA 98001-4998
Attn: Josh Arndt
Email:jarndt@auburnwa.gov
If to Lessee:
Email:
Notice of change of address shall be given by written notice in the manner detailed in this
Section.
ARTICLE 10: INSPECTION, ACCESS AND POSTED NOTICES
Lessor and any of its agents shall at any time upon seventy-two(72)hours advance,written
notice to Lessee, have the right enter upon and inspect the Premises provided; however,
that in the event the Lessor determines, in its sole and absolute discretion, that an
emergency situation exists on or adjacent to the Premises, no advance notice to Lessee is
required and Lessor may immediately enter upon and inspect the Premises. Lessor shall
have the right to serve,or to post and to keep posted on the Premises, or on any part thereof,
any notice permitted by law or by this Lease, any other notice or notices that may at any
time be required or permitted by law or by this Lease. Lessor shall not be liable in any
manner for any inconvenience, disturbance, loss of business, or other damages arising out
of Lessor's entry on the Premises as provided in this Section except for such damage that
is caused directly by, or through the gross negligence of, Lessor, their employees, agents,
or representatives.
ARTICLE 11: DEFAULT AND REMEDIES
11.1 Lessee shall be in default under this Lease if any rent or other payment due from
Lessee hereunder remains unpaid for more than ten (10) days after the date it is due; (ii)
Lessee files a voluntary petition in bankruptcy or makes a general assignment to the benefit
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of, or a general arrangement with, creditors; (iii) there is an involuntary bankruptcy filed
against Lessee that has not been dismissed within thirty (30) days of filing; (iv) Lessee
becomes insolvent; or(v) a receiver,trustee, or liquidating officer is appointed for Lessee's
business; or (vi) if Lessee violates or breaches any of the other covenants, agreements,
stipulations or conditions herein, and such violation of breach shall continue for a period
of thirty (30) days after written notice of such violation or breach is sent to Lessee, then
Lessor shall have the rights and remedies provided in this Article 12, in addition to any
other right or remedy available at law or equity(all notice and cure periods set forth above
are in lieu of and not in addition to any notice required pursuant to applicable unlawful
detainer/eviction statutes).
11.2 Upon any default under this Lease, Lessor may reenter the Premises in the manner
then provided by law, and remove or put out Lessee or any other persons found therein.No
such reentry shall be construed as an election on Lessor's part to terminate this Lease unless
a written notice of such intention is given to Lessee.
11.3 Lessor may also elect to terminate the Lease and all rights of Lessee by giving
notice to Lessee of such election. If Lessor elects to terminate the Lease, Lessor shall have
the right to reenter the Premises and remove all persons, and to take possession of and
remove all equipment and fixtures of Lessee in the Premises, in the manner then provided
by law. Lessee hereby waives all damages that may be caused by Lessor's reentering and
taking possession of the Premises or removing or storing the property thereof, and Lessee
shall save Lessor harmless therefrom, and no such reentry shall be considered a forcible
entry. If Lessor so elects to terminate the Lease, Lessor may also recover from Lessee:
(I) The worth at the time of the award of the unpaid rent which had been earned at
the time of termination;
(II) The worth at the time of the award of the amount by which the unpaid rent
which would have been earned after termination until the time of the award exceeds
the amount of rental loss that the Lessee proves could have been reasonably
avoided;
(III) The worth at the time of the award of the amount by which the unpaid rent for
the balance of the term after the time of the award exceeds the amount of rental loss
that the Lessee proves could be reasonably avoided;
(IV) Any other amount necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee's failure to perform its obligations under the
Lease or which in the ordinary course of things would be likely to result therefrom;
and
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(V) At Lessor's election, such other amounts in addition to or in lieu of the
foregoing that may be permitted from time to time by applicable law.
The "worth at the time of the award" of the amounts referred to in paragraphs (I)
and (II) above is computed by allowing interest at twelve percent (12%). The "worth at the
time of the award" of the amount referred to in paragraph (III) above is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco
at the time of the award plus one percent(1%).
11.4) Nothing in this Article 11 shall be deemed to affect Lessor's right to
indemnification for liability or liabilities arising prior to termination of this Lease for
personal injury or property damage under the indemnification provisions or other
provisions of this Lease.
ARTICLE 12:
Lessee acknowledges that although this lease is for a residential tenancy it is exempted
from the Residential Landlord Tenant Act, RCW 59.17, as an occupancy under a bona
fide earnest money agreement to purchase the property, pursuant to RCW 59.17.040.
ARTICLE 13: ATTORNEY'S FEES AND COSTS
If by reason of default on the part of either party to this Lease agreement it becomes
necessary to employ an attorney to recover any payments due hereunder or to enforce any
provision of this Lease, the prevailing party,whether such party be the successful claimant
or the party who successfully defended against the claim of the other party, shall be entitled
to recover a reasonable attorney's fee and to be reimbursed for such costs and expenses as
may have been incurred by such prevailing party.
ARTICLE 14: MISCELLANEOUS
14.1 Signage— Lessee agrees that no signs shall be placed on the Premises without the
prior written consent of the Lessor.
14.2) Locks and Keys — Lessee shall continue to use the same key and locking system
that Lessee used prior to the sale of the Premises, however Lessee must provide Lessor
with a key to all locking buildings on the Premises prior to Commencing of this Lease.
Lessor shall not be responsible for providing any additional keys to Lessee during the term
of this Lease. Immediately following expiration or termination of this Lease Lessee shall
turn over all keys and any garage door openers that may exist.
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14.3) Alarm Codes - Alarm code(s) will be provided for personnel access into the
Premises. Alarm codes are subject to change as determined and in the sole discretion of the
Lessor. Lessee shall be notified prior to changing of the alarm codes. Lessee shall not
provide any alarm codes to their customers or guests. Lessee shall immediately notify the
Lessor if the codes need to be changed to prevent access from a customer or employee to
maintain security.
14.4) Entire Agreement — This Lease constitutes the entire Agreement between the
Parties and supersedes any prior understanding or representation of any kind preceding the
date of this Agreement. There are no other promises, conditions, understandings or other
Agreements,whether oral or written,relating to the subject matter of this Lease. This Lease
may be modified in writing if signed by both Parties.
14.5) Regulatory Compliance - The Lessee agrees, at its sole cost and expense, to
conform to, comply with and abide by all lawful rules, codes, ordinances, requirements,
orders, directions, laws, regulations and standards of the United States, the State of
Washington, and City of Auburn or agency of any of said entities, including rules and
regulations of Lessor, including without limitation those relating to environmental matters,
and regulations set forth by the Environmental Protection Agency, now in existence or
hereafter promulgated, applicable to the Lessee's use and operation of said Premises,
including the construction of any improvements thereon, and not to permit said Premises
to be used in violation of any of said rules, codes, laws or regulations. Lessee shall pay all
costs, expenses, liabilities, losses, damages, fines, penalties, claims, and demands,
including reasonable counsel fees, that may in any manner arise out of or be imposed
because of the failure of Lessee to comply with the covenants of this section.
14.6) Cumulative Rights — Lessor and Lessee's rights under this Lease are cumulative
and shall not be construed as exclusive of each other unless otherwise required by law.
14.7) Non Waiver - Waiver by Lessor of any term, covenant or condition herein
contained or any breach thereof shall not be deemed to be a waiver of such term, covenant,
or condition or of any subsequent breach of the same or any other term, covenant, or
condition herein contained.
14.8) Force Majeure - Except for the payment of Rent, time periods for Lessee's or
Lessor's performance under any provisions of this Lease shall be extended for periods of
time during which Lessee's or Lessor's performance is prevented due to circumstances
beyond Lessee's or Lessor's control, including without limitation, strikes, embargoes,
shortages of labor or materials, governmental regulations, acts of God, war or other strife.
14.9) Severability - If any term, covenant, or condition of this Lease (or part thereof) or
the application thereof to any person or circumstance is, to any extent, invalid or
unenforceable, the remainder of this Lease (and/or the remainder of any such term,
covenant or condition), or the applicability of such term, covenant or condition to persons
or circumstances other than those to which it is held invalid or unenforceable, shall not be
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affected thereby and each term, covenant or condition (or part thereof) of this Lease shall
be valid and be enforced to fullest extent permitted by law.
14.10) Choice of Law, Integration, and Interpretation — This Lease and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the laws of the
State of Washington and venue for any action hereunder shall be in King County,
Washington. This Lease, together with any subsequent amendments or addendums,
constitutes the entire agreement of the parties and no other understandings, oral or
otherwise,regarding this Lease shall exist or bind any of the parties. All captions,headings
or titles in the paragraphs or sections of this Lease are inserted for convenience of reference
only and shall not constitute a part of this Lease or act as a limitation of the scope of the
particular paragraph or sections to which they apply. Construction of this Lease shall not
be affected by any determination as to who is the drafter of this Lease, this Lease having
been drafted by mutual agreement of the parties.
14.11) Authority - Each party hereto warrants that it has the authority to enter into this
Lease and to perform its obligations hereunder and that all necessary corporate action to
authorize this transaction has been taken, and the signatories, by executing this Lease,
warrant that they have the authority to bind the respective parties.
ARTICLE 15: SIGNATURE
By signing in the space below, the LESSEE ACKNOWLEDGES HAVING READ AND
UNDERSTOOD AND AGREES TO THE CONTENTS OF THIS AGREEMENT.
[SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE
LESSOR LESSEE
CITY OF AUBURN
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Nancy Backus, Mayor Michael A. Hager:
Date: Date:
Approved as to Form: Amy M. Glenz
Kendra Comeau, Auburn City Attorney Date:
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