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HomeMy WebLinkAboutCAG2001-0397 - Original - Burlington Northern & Santa Fe Railway Company (BNSF) - Purchase of Spur Site Property at 1st Ave N/James St - 07/19/2001 FORM APPROVED BY LAW THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY REAL ESTATE PURCHASE AND SALE AGREEMENT Staubach Global Services, Inc 999 Third Avenue, Suite 2120 Seattle, WA 98104 July 10, 2001 BUYER'S OFFER 1 The undersigned, hereinafter called "Buyer", offers to purchase from The Burlington Northern and Santa Fe Railway Company hereinafter called "Seller", all of Seller's right, title and interest in and to that parcel of land situated in or near the City of KENT, County of KING and State of WASHINGTON, shown hatched black on map marked Exhibit "A", dated OCTOBER 25, 2000 AND REVISED ON FEBRUARY 20, 2001, attached hereto and made a part hereof (said parcel of land being hereinafter called "the , Property") at the price and upon the terms and conditions as follows PURCHASE PRICE AND PAYMENT 2 Seller may approve or disapprove this Agreement for any reason whatsoever, in Seller's sole and absolute discretion, whether reasonable or unreasonable or whether arbitrary or capricious, subject to the approval of this Agreement by Seller, Buyer agrees to pay to Seller the purchase price of S895,000 00 for Property, of which the amount of $90,000 00 hereinafter called the "deposit", is paid to Seller, or Seller's assignee, to be applied on the purchase price Said deposit check shall be sent to Pacific Northwest Title Insurance Company of Washington, Inc Said deposit check should be made payable to Chase/Escrow Agent APEX Property & Track Exchange, Inc Buyer shall pay all costs associated with escrow Buyer and Seller shall split any interest earned on said deposit Said deposit shall be refunded to Buyer if this offer is not accepted by Seller within forty-five (45) days from the date of said offer The balance of said purchase price shall be paid in cash or by certified check to Seller or wire transfer to Seller's account as designated by Seller at the time Seller's deed to said property is delivered to Buyer Notwithstanding anything set forth herein to the contrary, the balance of the purchase price shall be due ten (10) days from notice that Seller's deed is ready for delivery Delivery of said deed shall be made at Pacific Northwest Title Insurance Company of Washington, Inc , located at 215 Columbia Street, Seattle, WA 98104-1511, phone (206) 343- 1327 1 TAX-DEFERRED EXCHANGE 3 Seller has elected to assign this Agreement to Apex Property & Track Exchange, Inc ("Apex") Apex is a qualified intermediary within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and Treas Reg § 1 1031(k)-1(g), for the purpose of completing a tax-deferred exchange under said Section 1031 Seller shall bear all expenses associated with the use of Apex, or necessary to qualify this transaction as a tax-deferred exchange, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Buyer from and against any and all reasonable and necessary additional costs, expenses, including attorneys fees, and liabilities which Buyer may incur as a result of Seller's use of Apex or the qualification of this transaction as a tax-deferred transaction pursuant to Section 1031 Buyer shall cooperate with Seller with respect to this tax-deferred exchange, and shall execute in triplicate the attached Assignment of Rights Under Contract to Real Estate, hereinafter described as Exhibit "B" CONVEYANCE 4 Seller shall convey or caused to be conveyed, all of Seller's right, title and interest in the property, if any, to Buyer by Bargain and Sale Deed provided the Buyer furnishes to the Seller a commitment for title insurance that is approved by the Seller, subject to the exceptions and reservations, whether or not of record and in accordance with the other terms, conditions and reservations contained herein Buyer shall, as soon as possible after acceptance of this offer, advise the Seller of Buyer's intent to have the property surveyed In the event the Seller's description of the property used in the Deed and the use of an Exhibit map for reference in the Deed is not acceptable to the Buyer, the Buyer shall so advise the Seller of their objections of said description and within 15 days thereof, the Buyer shall, at their expense, arrange for a survey of the property to be furnished to the Seller ACCEPTANCE CONSTITUTES AGREEMENT 5 This offer of the Buyer to purchase the property when duly accepted and signed by the Seller shall constitute the entire agreement between the parties for the sale and purchase of the property and shall bind and inure to the benefit of the Seller, the Buyer, and their heirs, executors, administrators, successors and assigns LIQUIDATED DAMAGES AND SPECIFIC PERFORMANCE 6 Time is of the essence of this contract If the Buyer shall fail to perform this contract within the time limits herein specified, Seller may retain the deposit as liquidated damages, not as a penalty or forfeiture, and declare this contract terminated, or Seller may proceed to have this contract specifically enforced SUCCESSORSININTEREST 7 Wherever referred to herein, the term Buyer shall imply, mean and apply to the Buyer, its successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder Wherever referred to herein the term Seller shall imply, mean and apply to the Seller, its successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder 2 0 THIS OFFER IS AND THE CONVEYANCE OF THE PROPERTY SHALL BE SUBJECT TO THE FOLLOWING TERMS, CONDITIONS AND RESERVATIONS. OTHER TERMS AND CONDITIONS 9 Title Defects--If, within the ten (10) day period following Seller's notice to Buyer that Seller's deed is ready for delivery, Buyer notifies Seller that Buyer has requested evidence of title to the Property, Buyer shall furnish to Seller at Buyer's expense such evidence of title within thirty (30) days of said notice from Buyer in the form of an abstract of title or a title commitment, and a written statement specifying the matters or defects other than said permitted exceptions and reservations and other than such usual exceptions contained in Owner's policies and the matters to which this sale is subject by the terms hereof, the time of payment of the balance of the purchase price shall be extended for a period of sixty (60) days after the receipt of said evidence of title and statement If Seller is unable or unwilling to cure such matter or defects within said sixty (60) day period, and Buyer is unwilling to accept the deed subject to such matter or defects then either party may terminate this Agreement by serving written notice of termination upon the other party within fifteen (15) days thereafter and all further rights and liabilities under this Agreement shall cease and terminate except that Seller shall return the deposit to Buyer and Seller shall reimburse Buyer for the actual amount paid by Buyer, if any, to an abstractor for an abstract of title or to a title company for a title report (but not for title insurance), provided that said abstract or title report shall be delivered and assigned to Seller Otherwise, Buyer shall remit to Seller, or Seller's assignee, the purchase price within ten (10) days or at closing, whichever is earlier 10 Real Estate Commissions-- Seller shall not be liable for any real estate commissions or finders fees to any party with respect to the sale of the Property, except to Staubach Global Services, Inc , ("Broker") pursuant to a separate agreement On and prior to the Date of this Agreement, Broker has advised, and hereby advises, Buyer, by this writing and by other means, and Buyer hereby acknowledges that Buyer has been so advised, that the Broker is acting as the agent of the Seller, with the duty to represent Seller's interest, and Broker is not the agent of the Buyer If a policy of title insurance is to be obtained, Buyer should obtain a commitment for title insurance which should be examined prior to closing by an attorney of Buyer's choice Prior to the execution of this Agreement, Broker has advised and hereby advises the principals of this transaction, that this Agreement is binding on them, and the principals hereby acknowledge that they have been so advised 11 Liens of Seller's Mortgages--Seller shall deliver to Buyer, who shall place of record, good and sufficient releases of the liens of Seller's mortgages, where required under the terms of any mortgage on the Property, within one hundred eighty (180) days after the first meeting of Seller's Board of Directors held after the conveyance contemplated herein In the event Seller shall be unable to obtain said releases for any reason, Seller or Buyer shall have the right to tennmate this Agreement upon serving written notice of termination upon Seller or Buyer within fifteen (15) days thereafter, and both parties shall thereupon be released and discharged from all liabilities and obligations hereunder, except that Seller shall repay to Buyer any and all sums therefore paid by Buyer to Seller upon a reconveyance of title to the Property to Seller free and clear of defects or objections to the same extent as if no conveyance had been made to Buyer hereunder 3 12 Other Liens--Any judgment against Seller which may appear of record as a lien against the Property shall be settled and satisfied by Seller if and when it is judicially determined to be valid, and Seller hereby indemnifies the Buyer for all loss ansmg out of Seller's failure to have a judgment hen so settled and satisfied. All outstanding assessments levied or due in the year the deed is delivered shall be paid by Buyer and Seller on a pro-rated basis, based upon the total number of days in a year 13 General Real Estate Taxes--Real estate taxes or assessments payable or paid in the year the deed is delivered shall be prorated by Seller and Buyer as of the date on which the deed is delivered on the basis of the most recent ascertainable taxes assessed against the subject Property, or as may be equitably apportioned thereto by the Seller if the Property is not separately assessed or unless the payment of same has been assumed by a tenant under an existing lease to be assigned to Buyer 14 Transfer Taxes--Buyer agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the conveyance instrument In the event of Buyer's failure to do so, if the Seller shall be obligated so to do, the buyer shall be liable for all costs, expenses and judgments to or against the Seller, including all of Seller's legal fees and expenses and same shall constitute a lien against the Property to be conveyed until paid by the Buyer 15 Notices and Demands--All notices, demands, payments and other instruments required or permitted to be given or served by either party shall be in writing and deemed to have been given or served by either party if sent by registered or certified mail, addressed to the other party at the address shown herein 16 Governmental Approval--If the approval of any governmental agency is required for the sale of the Property, it is understood and agreed that this Agreement is subject thereto and that both parties shall use their best efforts to obtain such approval The closing date shall be extended for such period as may be required to obtain such approval In the event said approval cannot be obtained, either party may terminate this Agreement without liability to the other, except that Seller shall return the deposit to Buyer In the event a city, county, or other governing authority wherein said Property is located requires a survey or plat or has a subdivision ordinance, the Buyer shall obtain such survey or plat, all at Buyer's sole cost and expense The survey or plat shall be submitted by Buyer to Seller for review and approval prior to recording and within a penod of forty-five (45) days after the date of Seller's acceptance of this offer 17 Deposit Authorization— The Deposit shall be paid to the escrow company, per paragraph 2, and said Deposit will be released to Seller upon removal of the Due Diligence contingency 18 Rail Service -- Nothing in this Agreement shall prevent Seller from discontinuing service over any railroad line or lines by which rail service may be provided to the Property 19 Leases and License Prepayment Limitation -- Seller shall not refund any prepaid or unearned lease rentals unless such prepaid or unearned rentals for each lease exceeds the sum of$500 00 20 Lease Rentals Continuance Buyer's Lease -- Buyer agrees to keep rentals, taxes and other charges payable to Seller under the terms of lease(s) NONE (Lease No ) fully prepaid with any refund or adjustment of same to be made as of the date of Closing If a lease includes a site only partially located within the Property being purchased, the refund, if applicable, shall be apportioned for that part of said lease site within the Property Cancellation of said lease shall be upon the date of conveyance of Property 4 21 Leases Other than Buyer -- Lease(s) NONE (Lease No. GN), being in the name of other than Buyer, shall be assigned to Buyer upon date of conveyance of the Property and will be subject to apportionment of prepaid rental,payable to Buyer, as of date of conveyance. 22. Complete Agreement -- This Agreement contains the entire Agreement between Seller and Buyer with respect to the Property and, except as set forth in this Agreement, neither Seller, nor Seller's agents or employees, have made any agreements, covenants, warranties or representations of any kind or character, express or implied, oral or written, with respect to the Property ADDENDUM PROVISIONS 23 This Agreement relates only to land Unless otherwise herein provided, any conveyance shall exclude Seller's railroad tracks and appurtenances thereto, Seller's buildings and any other improvements on the Property, all of which may be removed by Seller within 90 days following conveyance of the Property, and if not removed, shall be deemed abandoned by the Seller without obligation on the Seller's part and shall thereafter be and become the Property of the Buyer in place b. and Hatufe ll 0sand andgiavel anderlying, , privilege and heense at aiiy aiad all times to explofe, or dnll fef an— ffateet, eeiisen,e, mine, take, reoie,�e Property, gether A the right ofaccess at all+ifaos exefeise o said glits 25 The premises to be conveyed to Buyer shall include trackage shown highlighted in red said Exhibit "A"map, dated OCTOBER 25, 2000 AND REVISED JUNE 4, 2001 Seller shall convey its interest in said trackage by separate Bill of Sale, for and in consideration of ONE DOLLARS AND NO/100 (S1 00) Buyer shall remove said trackage, restore and continue to maintain the surface of 1"Avenue North at Buyer's sole cost and expense 26 Seller is not a foreign person as the term is used and defined in Section 1445 of the Internal Revenue Code of 1954, as amended and the regulations promulgated thereunder Seller shall, upon request of Buyer, complete an affidavit to this effect and deliver it to Buyer on or before closing of said sale 27 It is specifically agreed and understood by the parties hereto that the Buyer shall, before July 20, 2001, accept and sign this Real Estate Purchase and Sale Agreement The Closing hereunder shall be held and delivery of all items to be made at the office of Pacific Northwest Title Company of Washington, Inc on August 17, 2001, or such date prior thereto as Buyer and Seller may mutually agree in writing 28 Buyer has been allowed to make an inspection of the property and has knowledge as to the past use of the property Based upon this inspection and knowledge, Buyer is/are aware of the condition of the property and BUYER IS AWARE THAT BUYER IS PURCHASING THE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND THAT BUYER IS/ARE NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY HIND WHATSOEVER FROM SELLER AS TO ANY MATTERS CONCERNING THE PROPERTY, including the physical condition of the property and any defects thereof, the presence of any hazardous substances, wastes or contaminants in, on or under the property, the condition or existence of any of the above ground or underground structures or improvements in, of or under the property, the condition of title to the property, and the leases, easements or other agreements affecting the property Buyer aware of the risk that hazardous substances and contaminants may 5 • 0 be present on the property, and indemnifies, holds harmless and hereby waives, releases and discharges forever Seller from any and all present or future claims or demands, and any and all damages, loss, injury, liability, claims or costs, including fines, penalties and judgments, and attorney's fees, arising from or in any way related to the condition of the property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any hazardous substances or contaminants in, on or under the property Losses shall include without limitation (a) the cost of any investigation, removal, remedial or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the Seller remaining property or the operations or business of the Seller on its remaining property to be in compliance with the requirements of any Environmental Law, (c) Losses for injury or death of any person, and (d) Losses ansmg under any Environmental Law enacted after transfer The rights of Seller under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise This mdemmty specifically includes the obligation of Buyer to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any hazardous substances or contaminants on the property The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any smular or comparable state or local law The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation, petroleum oil and any of its fractions 29 Buyer shall conduct an environmental review and feasibility study on the Property at its sole cost and expense The closing of this sale is contingent upon Buyer's approval of said review and study Said contingency shall be removed within ninety (90) days from the date of this Agreement This sale is also contingent upon Kent City Council approval 30 If requested by Buyer, will execute and deposit into escrow a letter of indemnity in the form as shown as Exlubit "C", attached hereto and made a part hereof 31 The parties agree the terms, conditions, and addendum provisions of this agreement shall survive closing 6 32. Notwithstanding, anything herein, this sale shall close no later than August 17, 2001, or such date prior thereto as Buyer and Seller may mutually agree in writing. BUYER MUST CLEARLY SET FORTH FULL AND CORRECT NAMES OR PARTY OR PARTIES TO WHOM TITLE WILL BE CONVEYED, THEIR ADDRESS, THEIR RELATIONSHIP, IF ANY, AND WHETHER CONVEYANCE IS TO BE IN JOINT TENANCY OR OTHERWISE, AND IF A COMPANY, WHETHER IT IS A PARTNERSHIP, TRUST, TRUSTEE OR CORPORATION, ADDRESS OF PRINCIPAL OFFICE AND STATE OF INCORPORATION This offer consisting of pages and by said Exhibits "A", "B" & "C" attached hereto, is ni a a part hereof, has been made, signed and sealed in duplicate by the Buyer this /9 day of 2001 Buyer's name as it is to appear on deed (:—r+v < �E 1` ' a rr�C l pnj Ccr:�oroz1� (PRINTED/TYPED) — 7- IM By :J ► L—� �� l+C x NAME(PRINTED/TYPED) SI A TIM TITLE (OR 2ND S TURE IF PARTNERSHIP) STATE OF INCORPO ADDRESS OF BUYER CITY, STATE AND ZIP CODE TELEPHOIZE NO (INCLUDING AREA CODE) The foregoing offer is Accepted by Seller this day of 2001 THE BURLINGTON NORHTERN AND SANTA FE RAILWAY COMPANY BY TITLE 7 EXHIBIT "B" ASSIGNMENT OF RIGHTS UNDER CONTRACT TO REAL ESTATE APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporation, of 2036 Washington Street, Hanover, Massachusetts 02339, (hereinafter called "Assignee"), THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Qelawge, corpo•ation, (hereinafter called "Exchangor"), and a corporation (hereinafter called"Buyer") Whereas, Exchangor and Buyer heretofore entered into an Agreement dated , 200_ (the "Contract"), wherein Exchangor agrees to assign the rights to the Contract, but not the obligations and warranties over to Assignee, as it pertains to the following described Relinquished Property "See EXHIBIT "A" attached hereto and made a part hereof' Now, Therefore, Exchangor hereby assigns to Assignee all of the Exchangor's rights under the Contract, as contemplated by Treasury Regulations Section 1 1031 (k)-1(g)(4)(v), including all deposits received prior to issuing a Deed transferring legal title Exchangor's obligations and warranties under the Contract remain with the Exchangor, including the authority to issue a Deed transferring legal title to the Relinquished Property over to the Buyer Assignee previously represented, warranted and covenanted to Exchangor, under the Master Exchange Agreement dated January 1, 1997, that it will not transfer, assign, mortgage or hypothecate the rights that it is receiving from the Exchangor and that Assignee shall not amend, terminate, modify, supplement or otherwise alter any term, condition or other provision of the Contract At the same time the Deed goes into effect transferring legal title to the Buyer, rights received under this Assignment of Rights are transferred to the Buyer Assignee is participating in this transaction only as a Qualified Intermediary and that for purposes of any dispute regarding the Relinquished Property, Exchangor and Buyer shall look solely to each other with respect to resolving any such dispute and neither one shall look to the Assignee This shall be binding upon and shall inure to the respective heirs, successors and assigns of Exchangor and Buyer This instrument may be executed in any number of counterparts, each of which, when duly executed, shall constitute an original hereof 8 In Witness Whereof, the parties hereto have executed this Assignment of Rights Under Contract,to be effective as of the date on which the last party hereto signs Exchangor THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation By Date D P Schneider General Director Real Estate Assignee APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporation By Date Lisa Leary First Vice President Buyer C 1+ -F p2)e �- a l -) c -u n cam-,corporation �1 t By �� Date �— / �/ —Q PLEA 1 Name Title c` 9 6f 00 � 9 Bfb lBb9lws3 'TS 'SBWD(` Z LLow�'ao \ 1 (n3OC X �3¢ II nW D_ - O W p N>.Zwp a i »D_ON O C, F-cloy 1 u ! d� I IeV m 4'�N N O U O- o u rLV)> too � w IIIrr . � VA\ !t' '\ \vaY�v f ♦ A \Xi O to I-U Nil UIDVI r \ I N� p Q I -� F� !a P t _ � ✓ III + 1 3s 43lws _ a II z I n CO ` osVP wio��i.,,eY. ail to FQ 1 EXHIBIT "C" BNSF DAVID P SCHNEIDER Burlington Northern Santa Fe General Director Real Estate P O Box 961050 Ft Worth TX 76161-0050 Phone 817-352-6469 Fax 817-352-7101 Date Name Address City, State,Zip RE Conveyance of property located In Dear Mr The Burlington Northern and Santa Fe Railway Company (hereinafter BNSF) hereby advises you that property being conveyed to Purchaser is subject to the liens of the following mortgages General Lien Mortgage of Northern Pacific Railway Company dated November 10, 1896, of which mortgage Citibank, N A , formerly First National City Bank, successor by merger of the First National Bank of the City of New York, is trustee Consolidated Mortgage of Burlington Northem Inc dated March 2, 1970 of which mortgage First Trust of New York, National Association (successor to Morgan Guaranty Trust Company of New York) and W A Johnson are trustees After closing of the transaction and recording of the conveyancing instrument, BNSF will initiate procedures to obtain a partial release from the liens of said mortgages and all supplements thereto applicable to the property described in that certain deed to the dated , 2001 BNSF further agrees to indemnify and save harmless against and from any loss or damage, to the maximum of FOUR MILLION AND NO/100 DOLLARS ($4,000,000 00), arising solely out of any valid claim or claims by the mortgage trustees because of a failure to obtain and furnish such partial release of the property described in the aforesaid deed from the liens of said mortgages, as supplemented This indemnity shall terminate upon the recording of such partial release in the land records of said County Very truly yours, D P Schneider General Director Real Estate BNSF 01864 Fargo, ND . f BILL OF SALE THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, whose mailing address is 2500 Lou Menk Drive, Fort Worth, Texas 76131-2830, hereinafter called "Grantor", in consideration of ONE AND NO/100 DOLLARS ($1.00) and other good and valuable consideration to it paid by CITY OF KENT, a Washington municipal corporation, whose mailing address is 220 Fourth Avenue South, Kent, Washington 98032-5895, hereinafter called "Grantee", receipt whereof is hereby acknowledged, has sold, assigned, transferred and delivered and by these presents does hereby sell, assign, transfer and deliver unto the Grantee, without any covenants of warranty whatsoever and without recourse to the Grantor, all its right, title and interest, if any, in and to the following described personal property presently situated in the County of King, State of Washington, to-wit Trackage, together with all materials and appurtenances, including rails, ties, wires, signals and other track materials associated therewith in an "as-is" condition (collectively, the Personal Property) which lies within that portion of a parcel of land situated in the NW'/4NE'/4 of Section 24, Township 22 North, Range 4 East, in King County, Washington, said Personal Property being more particularly shown on attached EXHIBIT "A", and by this reference made a part hereof. Grantee agrees to assume all obligations thereto, including dismantling costs if the Grantee decides to remove said Personal Property Grantee further agrees to remove said trackage, restore and continue to maintain the surface of 1ST Avenue at Grantee's sole cost and expense TO HAVE AND TO HOLD, together with all appurtenances thereunto belonging to the Grantee its successors and assigns, forever Grantee has fully examined and inspected said trackage and appurtenances, and`' as in all respects accepted and approved the same and all parts and appurtenances thereof and acc pts this Bill of Sale with the understanding that the Grantor has made no representations or watrzarties respecting the nature or condition of said trackage, or any of its appurtenances IN WITNESS WHEREOF, the Granto has caused this Bill of Sale to be signed by its duly authorized officers this 'flay of 2001 THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By A �; 9efFelder General Director Real Estate BNSF 02424 Kent, WA Solo Pape .o o ,h, "D e,,.e Ild"It"0119 Ih, :a,10 le�...o,.o.e,e.1a1 o.,.,,�„ oeo,,, w� rt< N n � O �n o n n -- Smith St. - = — - 1+ Ac � 7 ' a i i �T T 7 - { _ To• Maln Trk. nq m �.e o , 1 I n o o i Ir y 1a , 1 ` N w,pn o - F- � N r NZfd.7ldw vo- <w3 1 1 n s,wsmn o �0�o 1 1 I` 1 af� �EA rrl r r Hamm vU>m CP c.+a'�D o •�',• ma's.��-s_r James Stit �,Esl - aea, a}B a]v on m mo � •__ � I e � n WHEN RECORDED MAIL TO: Kim Adams-Pratt Assistant City Attorney City of Kent 220 Fourth Avenue South Kent, Washington 9 032-5895 20010817000847 PAGEF001NOFT008 15 00 08/17/2001 11 11 KING COUNTY, WA y1 11G0C') L BARGAIN AND SALE DEED FILED BY PNVVT a THE BURLINGTON NORTHERN AND ANTA FE RAILWAY COMPANY, o a Delaware corporation, (formerly Burlington Northern Railroad Company), of 2500 Lou Menk Drive, Fort Worth, Texas 76131-2830, hereinafter called "Grantor", for and in consideration of Ten and No/100 Dollars ($10.00) and other good and o valuable consideration, in hand paid, bargains, sells, and conveys to CITY OF KENT, a Washington municipal corporation, of 220 Fourth Avenue South, Kent, o Washington 98032-5895, hereinafter called "Grantee", all of its right, title, and N interest in and to the real property (exclusive of any improvements thereon), situated in King County, Washington, hereinafter called "Property", being more particularly described as follows: NW'/4NE114, Section 24, Township 22 North, Range 4 East, in King County, Washington, complete legal description is described on page 6 as EXHIBIT "A", consisting of one (1) page, attached hereto and hereby made a part hereof Assessor's Property Tax Parcel Account Number(s): 242204-9010-01 E1,836226 KING COUNTY, WA BALE $885;000.00 FACE 001 OF 002 SUBJECT, however to all existing interests, including but not limited to, the current non-delinquent general and special taxes for the fiscal year of the transfer of title, which are then a lien, to all reservations, rights-of-way and easements of record or otherwise, and further subject to the matters described on EXHIBIT "B", attached hereto and by this reference made a part hereof, but only to the extent the same are validly existing and applicable to the Property Grantee has been allowed to make an inspection of the Property and has knowledge as to the past use of the Property. Based upon this inspection and knowledge, Grantee is aware of the condition of the Property and GRANTEE ACKNOWLEDGES THAT GRANTEE IS PURCHASING THE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND THAT GRANTEE o IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM GRANTOR AS TO ANY MATTERS CONCERNING THE PROPERTY, including the physical condition of m the Property and any defects thereof, the presence of any hazardous substances, wastes or contaminants in, on or under the Property, the condition or existence of any of the above ground or underground structures or improvements in, on or under the Property, the condition of title to the Property, and the leases, easements or other agreements affecting the Property. Grantee is aware of the risk that hazardous substances and contaminants may be present on the Property, and indemnifies, holds harmless and hereby waives, releases and discharges forever Grantor from any and all present or future claims or demands, and any and all damages, loss, injury, liability, claims or costs, including fines, penalties and judgments, and attorney's fees, arising from or in any way related to the condition of the Property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any hazardous substances or contaminants in, on or under the Property. Losses shall include without limitation (a) the cost of any investigation, removal, remedial or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the BNSF 02424 Kent, WA 2 circumstances, (b) capital expenditures necessary to cause the Grantor's remaining property or the operations or business of the Grantor on its remaining property to be in compliance with the requirements of any Environmental Law, (c) losses for injury or death of any person, and (d) losses arising under any Environmental Law enacted after transfer The rights of Grantor under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise. This indemnity specifically includes the obligation of Grantee to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any hazardous substances or contaminants on the Property. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. m 0 0 o The term "Hazardous Substance" means any hazardous, toxic, _ radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. 0 0 N By delivery of this deed, Grantee, their legal representatives, heirs, successors and assigns, hereby accept and agree to all of the terms, conditions, provisions, reservations, restrictions, and indemnities herein contained. The Grantor for itself and for its successors in interest does by these presents expressly limit the covenants of the deed to those herein expressed, and exclude all covenants arising or to arise by statutory or other implication, and do hereby covenant that against all persons whomsoever lawfully claiming or to claim by, through, or under said Grantor and not otherwise, will forever warrant and defend the said described real Property, subject however to the Permitted Exceptions set forth on EXHIBIT "B", to the extent, but only to the extent such exceptions validly affect the Property BNSF 02424 Kent, WA 3 IN WITNESS WHEREOF, Grant (has caused these presents to be signed in its name, this_ day of , 2001 THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPAN By J es J 'N ssistant Vi President ANo Property & acilities Management zr EA m= ATTEST: r'a By Patricia Zbicho i Assistant Secretary STATE OF TEXAS § o § ss. o COUNTY OF TARRANT § On this day of 2001, before me personally Q appeared James J. O'Neil and Patricia Zb chorski, who being duly sworn, each for himself and not one for the other, did say that the former is the Assistant Vice o President Property & Facilities Management and the latter is the Assistant `" Secretary of THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and each of them acknowledged said instrume to be its voluntary act and deed Before me 14 Notary Pub c f State of Texas =BURTONResiding a . , Texas My commission expires 7 BNSF 02424 Kent, WA 4 ACCEPTED: CITY OF KENT, a Washington municipal corporation BY Name Title: STATE OF WASHINGTON § § ss. COUNTY OF KING § On this 1�Yday 2001, before me personally appeared :u who, being duly sworn, / did say that he is the m 1'Y1 of the CITY OF KENT, a c Washington mu i ipal corporation, and that the foregoing instrument was signed o in behalf of sbffl corporation by authority of its board of directors, and N acknowledged said instrument to be its voluntary act and deed �OON �y%F Before m . us1c,� i 41 110TARyt rn • �•— Notary Public for State of Washington yual'+� at r .,`is-o d aC Residing . of0IMASN�;' My commission expires BNSF 02424 Kent, WA 5 EXHIBIT "A" A parcel of land situated in the County of King, State of Washington, and being described as follows Tract X, EXCEPT the following parcel: Beginning at the most Southwesterly corner of the parcel of land conveyed by Northwestern Improvement Company to The Borden Company under deed dated April 12, 1956 and recorded under Recording Number 4688725, records of King County, Washington, being a point in the East line of 4T"Avenue in the City of Kent, Thence South 0°13'11" West along said East line 18 2 feet, Thence South 72°53'30" East 270 58 feet to a point of curve, Thence Easterly on a curve to the left with a radius of 776.62 feet, a distance of 108 07 feet, Thence North 9°08'07" East 22 3 feet to a point of curve from a tangent bearing South 80°51'53" East, Thence Easterly on a curve to the left, with a radius of 754 32 feet, a distance of 120 6 feet, Thence North 00°01'30" West 12 7 feet, more or less, to the Southerly line of the above- mentioned parcel of land, Thence Westerly along said Southerly line to the Point of Beginning; coSaid Tract X described as follows o That portion of the Northwest Quarter of the Northeast Quarter of Section 24, Township 0 22 North, Range 4 East, in King County, Washington, lying West of First Avenue North, East of 4' Avenue North, North of Temperance Street and South of the following described line* ®o Beginning at a point on the West line of First Avenue North 762.45 feet South of the North line of said subdivision, o Thence Southwesterly and Westerly on a curve to the right, radius of 265 44 feet, which N is not tangent to said West line, a distance of 203 73 feet to a point of tangency Thence South 89°58'30" West 226 90 feet; Thence on a curve to the right, radius of 742 0 feet, a distance of 221 77 feet, Thence North 72°53'30" West a distance of 108 40 feet to a point of curve; Thence on a curve to the left, radius 787.0 feet, a distance of 169 14 feet, more or less, to a point on the East line of 4"Avenue North FORM APPROVED BY LAW APPROVED !!�� LEGAL KXA APPROVED d/ FORM 4Z19-1 APPROVED `-"-"i BNSF 02424 Rent, WA 6 EXHIBIT "B" 1. Rights or claims of parties in possession not shown by the public records 2 Public or private easements, or claims of easements, not shown by the public records. 3 Encroachments, overlaps, boundary line disputes, or other matters, which would be disclosed by an accurate survey or inspection of the Property. 4 Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records, or Liens under the Workmen's Compensation Act not shown by the public records 5 Any title or rights asserted by anyone including but not limited to persons, corporations, governments or other entities, to tide lands, or lands comprising the shores or bottoms of navigable rivers, lakes, bays, ocean or sound, or lands beyond the line of the harbor lines as established or changed by the United States Government a 0 6 (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (c) water rights, claims or title to m water 0 7 Any service, installation, connection, maintenance, capacity, or CM construction charges for sewer, water, electricity or garbage removal 8. General taxes not now payable or matters relating to special assessments and special levies, if any, preceding the same becoming a lien. 9 Indian tribal codes or regulations, Indian treaty or aboriginal rights, including, but not limited to, easements or equitable servitudes 10 Easement and the terms and conditions referenced therein in favor of the City of Kent for the purpose of constructing, operating, and maintaining a sewer and standard city manholes affecting a 10 foot wide strip over and across said Property recorded April 2, 1947 as Recording Number 3674629 BNSF 02424 Kent, WA 7 11. Easement and the terms and conditions referenced therein in favor of Washington Natural Gas Company, a Delaware corporation for the purpose of maintaining, operating, repairing, altering, replacing and removing gas pipe line affecting said Property recorded February 10, 1959 as Recording Number4995831. 12 Right to make necessary slopes for cuts or fills upon Property herein described as condemned in King County Superior Court Cause Number 708685 13 Unrecorded lease number 250267, as disclosed by County Tax Records r w 0 a 0 r 0 0 0 cv BNSF 02424 Kent, WA 8