HomeMy WebLinkAboutPW08-114 - Amendment - King County - Fourth Amended Purchase of Mullen Slough Natural Area - 04/30/2009 FOURTH AMENDED REAL ESTATE PURCHASE AND SALE AGREEMENT
THLS FOURTH AMENDED REAL ESTATE PURCHASE AND SALE AGREEMENT("First
Amended Agreement")is made and entered into as of April_,2009,by and between ICING
COUNTY,a political subdivision of the State of Washington(the"Seller")and the CITY OF
KENT, a municipal corporation(the"Buyer").
RECITALS
A. Seller owns that certain real property located in the County of King, State of
Washington,which consists of approximately 14 acres of unimproved land, commonly identified as
the Mullen Slough Natural Area,the legal description of which is attached hereto as EXHIBIT A
(the "Property").
B. Buyer and Seller are parties to that certain Real Estate Purchase and Sale Agreement,
dated February 21, 2008, as amended by Amendment One to the Purchase and Sale Agreement for
Mullen Slough,Amendment Two to the Purchase and Sale Agreement for Mullen Slough,and
Amendment Three to the Purchase and Sale Agreement for Mullen Slough. Following execution of
the Real Estate Purchase and Sale Agreement, environmental contamination was discovered on the
Property,necessitating a delay in the due diligence period and requiring three subsequent
amendments. In order to unambiguously express the intent of the parties, the parties have elected to
replace the Real Estate Purchase and Sale Agreement, as amended,with this Fourth Amended
Agreement.
C. Buyer and Seller agree that the contingencies provided in Sections 5.1, 5.1.1 and 5.1.2
have been satisfied and are hereby removed. With specific regard to the removal of the inspection
contingency provided in Section 5.1.1,Buyer agrees to proceed with the purchase and remedy the
contamination after closing, subject to a reduction in the Purchase Price.
D. Buyer acknowledges that the Property was purchased for open space purposes with
Conservation Futures funds as authorized by King County Ordinance 14714 and is required by law
to be maintained in strict conformance with the uses authorized under RCW 84 34.020. Buyer
intends to maintain the Property as open space in conformity with all existing restrictions.
E. Seller is desirous of selling the Property and Buyer is desirous of purchasing the
Property.
AGREEMENT
Now,THEREFORE,in consideration of the promises and mutual covenants contained herein,
and other valuable consideration, receipt and sufficiency of which are hereby acknowledged,the
parties hereto covenant and agree that the Real Estate Purchase and Sale Agreement,as previously
amended is hereby amended,superseded and replaced in its entirety by this Fourth Amended
Agreement.
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_a
ARTICLE 1.
PURCHASE AND TRANSFER OF ASSETS
1.1 PROPERTY To BE SOLD. Subject to and upon the terms and conditions set forth in this
Fourth Amended Agreement, Seller shall sell,convey, assign, transfer and deliver to Buyer on the
Closing Date(as hereinafter defined)and Buyer shall buy, assume and accept from Seller on the
Closing Date the following assets and properties:
(a) all of Seller's right,title and interest in the Property as described in EXHIBIT
A;
(b) all of Seller's right,title and interest in improvements and structures located on
the Property,if any;
(c) all of Seller's right, title and interest in and to tangible personal property, if
any, owned by the Seller and attached, appurtenant to or used in connection with the Property
("Personal Property");
(d) all of Seller's tenements,hereditaments, easements and rights appurtenant to
the Property including but not limited to, all of the Seller's nght, title, and interest in and to streets,
alleys or other public ways adjacent to the Property, easements for public utilities, all sewers and
service drainage easements, all nghts of connection to the sewers, and all rights of ingress and egress,
and all leases, licenses,government approvals and permits affecting the Property.
Hereinafter,the items listed in Section 1.1 are collectively referred to as the"Purchased Assets."
ARTICLE 2.
PURCHASE PRICE
2.1. PURCHASE PRICE AND PAYMENT. In consideration of the sale, transfer,conveyance,
assignment and delivery of the Purchased Assets, Buyer shall,in full payment therefore, pay to Seller
on the Closing Date a total purchase price of Two Hundred Eighty Thousand Dollars $(280,000) (the
"Purchase Price")
2.2. ALLOCATION OF PURCHASE PRICE. Seller and Buyer agree that the entire Purchase
Price is allocable to real property and that the value of the Seller's Personal Property,if any,is de
minimus.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
3.1. WARRANTIES AND REPRESENTATIONS OF SELLER. Seller represents and warrants as
follows-
3.1.1. Definition of Seller. The Seller is a municipal corporation and subdivision of
the State of Washington duly organized, validly existing and in good standing under the laws of the
State of Washington. Seller has all requisite corporate power and authority to carry on its business as
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it is now being conducted in the place where such businesses are now conducted.
3.1.2. Execution, Delivery and Performance of Agreement, Authority. The
execution, delivery and performance of this Agreement by Seller (i)is within the powers of Seller as
a municipal corporation, (ii)has been or will be on or before the Closing Date, duly authorized by all
necessary action of the Seller's legislative authority, and (iii)does not and will not violate any
provision of any law, rule, regulation, order, writ,judgment, decree or award to which the Seller is a
party to or which is presently in effect and applicable to Seller. This Agreement constitutes the legal,
valid and binding obligation of Seller enforceable against Seller in accordance with the terms thereof.
3.13. Assessments. There is no pending,or to the best of Seller's knowledge,
contemplated local improvement district or other special assessment or charge with respect to the
Property, except as may be disclosed in the Title Commitment described in Section 4.Lof this
Agreement.
3.1.4. Full Disclosure. No representation or warranty by Seller in this Agreement
or in any instrument, certificate or statement furnished to Buyer pursuant hereto,or in connection
with the transactions contemplated hereby, contains or will contain any untrue statement of a material
fact or fail to state a material fact which is necessary to make the statements set forth therein not false
or misleading.
3.1.5. No Broker. No broker,finder,agent or similar intermediary has acted for or
on behalf of Seller in connection with this Agreement or the transactions contemplated hereby, and
no broker, finder, agent or similar intermediary is entitled to any broker's, finder's or similar fee or
commission in connection with this Agreement based on an agreement, arrangement or understanding
with Seller or any action taken by Seller.
3.1.6. Contracts. There are no contracts or other obligations outstanding for the
sale,exchange,transfer, lease,rental or use of the Property or any portion thereof.
3.1.7. Future Agreements. From and after the date hereof;unless this Agreement is
terminated in accordance with its terms, Seller shall not without the prior written consent of Buyer:
(i) enter into any agreement,contract,commitment,lease or other
transaction that affects the Property in any way;or
(ii) sell, dispose of or encumber any portion of the Property.
3.1.8. Condition of the Property. Seller has not intentionally withheld any material
information concerning Hazardous Substances with respect to the Property. For purposes of this
Agreement,the term Hazardous Substances shall mean: "hazardous substance" as defined in the
Comprehensive Environmental Response,Compensation and Liability Act of 1980, as amended
("CERCLA"); "hazardous waste"as defined by the Resource Conservation and Recovery Act of
1976 ("RCRA") as amended;hazardous wastes,hazardous materials,hazardous substances,toxic
waste,toxic materials, or toxic substances as defined in state or federal statutes or regulations;
asbestos-containing materials,polychlorinated biphenyls;radioactive materials, chemicals known to
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cause cancer or reproductive toxicity; petroleum products, distillates or fractions; any substance the
presence of which is prohibited by statute or regulation, and any substance for which any statute or
regulation requires a permit or special handling in its use,collection, storage,treatment or disposal.
3.1.9. Risk of Loss. Until the Closing Date,the risk of loss relating to the Property
shall rest with the Seller. Risk of Loss shall be deemed to include any property damage occurring as
a result of an"Act of God,"including, but not limited to,earthquakes,tremors,wind,rain or other
natural occurrence.
3.1.10. Foreign Person. Seller is not a foreign person and is a"United States Person"
as such term is defined in Section 7701 (a)(30)of the Internal Revenue Code of 1986,as amended
(the"Code")and shall deliver to Buyer prior to the Closing Date, an affidavit, as set forth in
EXHIBIT C(Certificate of Non-Foreign Status), evidencing such fact,and such other documents as
may be required under the Code.
3.2. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants as
follows:
3.2.1. Organization. Buyer is a municipal corporation of the State of Washington
duly organized,validly existing and in good standing under the laws of the State of Washington.
Buyer has all requisite corporate power and authority to carry on its business as it is now being
conducted in the place where such businesses are now conducted.
3.2.2. Execution,Delivery and Performance of Agreement,Authority. The
execution,delivery and performance of this Agreement by Buyer(i) is within the powers of Buyers
as Individuals(ii)has been or will be on or before the Closing Date, duly authorized by all necessary
action of the Buyer's legislative authority, and(iii) does not and will not violate any provision of any
law, rule,regulation, order, writ,judgment, decree or award to which the Buyer is a party to or which
is presently in effect and applicable to Buyer. This Agreement constitutes the legal,valid and
binding obligation of Buyer enforceable against Buyer in accordance with the terms hereof.
3.2.3. Full Disclosure. No representation or warranty by Buyer in this Agreement or
in any instrument, document, certificate or statement furnished to Seller pursuant hereto,or in
connection with the transactions contemplated hereby, contains or will contain any untrue statement
of a material fact or fail to state a material fact which is necessary to make the statements set forth
therein not false or misleading.
3.2.4. Condition of Property. Buyer acknowledges that,within the Due Diligence
Period, it will have conducted a physical inspection and made all investigations Buyer deems
necessary in connection with its purchase of the Purchased Assets, and that, as of the date hereof,
Seller has provided Buyer with copies of all reports in Seller's possession that have been requested
by Buyer. Additionally,Buyer acknowledges that Seller has provided Buyer with a copy of its Phase
I Environmental Assessment Mullen Slough Project/John J. Flower Property Kent, Washington,
dated September,2004, which identifies known Hazardous Substances present on the Property.
Upon waiver or satisfaction by Buyer of its contingencies pursuant to Article 5, Buyer will be
deemed to have approved the physical condition of the Property and agrees to accept and purchase
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the same"AS IS,WHERE IS", including,without limitation,the existence or non-existence of any
pollutants, contaminants,hazardous waste, dangerous waste,toxic waste,underground storage tanks
or contaminated soil,or the actual or threatened release, deposit seepage,migration or escape of such
substances at, from or into the Property and the compliance or noncompliance of the Property with
applicable federal, state, county and local laws and regulations including,without limitation,
environmental laws and regulations. Buyer acknowledges and agrees that, except to the extent of
Seller's representations and warranties in Section 3.1 of this Agreement, and to the extent of any
fraud or deliberate misrepresentation by Seller, Seller shall have no liability for,and that Buyer shall
have no recourse against the Seller for, any defect or deficiency of any kind whatsoever in the
Property including without limitation those relating to Hazardous Substances, without regard to
whether such defect or deficiency was discovered or discoverable by the Buyer or Seller.
3.2.5. Property Acquisition and Redevelopment. No costs of any nature
associated with the purchase of the Property or redevelopment of the Property will ever be or become
an obligation of the Seller. The Buyer shall be solely responsible for all costs associated with the
acquisition of the Property and redevelopment of the Property, including without limitation
responsibility for all land use approvals,permits, site plan approvals, environmental approvals, and
any other governmental approvals necessary for Purchaser to develop and construct on the Property.
3.2.6. No Broker. No broker,finder, agent or similar intermediary has acted for or
on behalf of Buyer in connection with this Agreement or the transactions contemplated hereby, and
no broker, finder,agent,or similar intermediary is entitled to any broker's, finder's or similar fee or
commission in connection with this Agreement based on an agreement, arrangement, or
understanding with the Buyer or any action taken by the Buyer.
3.2.7. Indemnification. Buyer shall indemnify, defend and hold Seller, its officers,
agents and employees harmless from and against any and all claims and agency orders or
requirements relating to or arising out of, directly or indirectly, the Property after Closing.
ARTICLE 4.
TITLE MATTERS
4.1. TITLE. Seller shall deliver to Buyer good and marketable title, free and clear of all
liens,defects and encumbrances except for the Permitted Exceptions (as defined in Section 4.1.3 of
this Agreement).
4.1.1 Title Commitment. Seller shall obtain a current ALTA form of commitment
for a standard coverage owner's policy of title insurance (the"Title Commitment")issued by Pacific
Northwest Title Company(the"Title Company"), describing the Property, listing Buyer as the
prospective named insured and showing as the policy amount the total purchase price for the
Property.
4.1.2 Survey. Buyer and Seller acknowledge that Seller has not provided a survey
of the Property to Buyer and that Buyer shall satisfy itself as to any survey of property lines it deems
necessary.
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4.1.3 Review of Title Commitment and Survey. Buyer shall have until five(5)
days after receipt of the last dated Title Commitment and Survey,if any has been obtained, (the
"Review Period") in which to notify Seller of any objections Buyer has to any matters shown or
referred to in the Title Commitment or Survey. Any exceptions or other items that are set forth in the
Title Commitment or the Survey and to which Buyer does not object within the Review Period shall
be deemed to be permitted exceptions("Permitted Exceptions"). With regard to items to which
Buyer does object within the Review Period, Seller shall notify Buyer within five(5) days after Seller
receives Buyer's notice of objections of any exceptions to the title or items on the Survey which
Seller is not willing or able to remove or otherwise resolve, and Buyer may, at Buyer's option, either
waive the objections not cured or Buyer may terminate this Agreement by written notice to Seller.
Notwithstanding the foregoing, all monetary liens or encumbrances shall be paid by Seller at Closing.
4.2. OWNER'S TITLE INSURANCE POLICY. At the closing, Seller shall cause a standard
coverage owner's policy of title insurance to be issued by the Title Company in the full amount of the
purchase price, effective as of the closing date, insuring Buyer that the fee simple title to the Property
is vested in Buyer, subject only to the usual printed exceptions contained in such title insurance
policy, to the matters approved by Buyer as provided herein, and to any other matters approved in
writing by Buyer. The obligation of Seller to provide the title policy called for herein shall be
satisfied if, at the closing, the Title Company has given a binding commitment, in a form reasonably
satisfactory to Buyer, to issue the policies in the form required by this section. Seller shall pay any
sum owing to the Title Company for the preparation of the preliminary and binding commitments
generated by the Title Company.
4.3. CONVEYANCE. Seller shall convey to Buyer the title to the Property by Bargain and
Sale Deed in substantially the form attached hereto as EXHIBIT B, subject to the Permitted
Exceptions, an open space covenant, and a reserved river protection easement. Rights reserved in
federal patents or state deeds,building or use restrictions general to the district, and building or
zoning regulations or provisions shall be deemed Permitted Exceptions.
ARTICLE 5.
CONTINGENCIES
5.1. DUE DILIGENCE INSPECTION AND FEASIBILITY. Buyer may satisfy itself by
investigation and inspection, at its cost and expense, in its sole and absolute discretion,that the
condition of the Property for Buyer's contemplated use meets with its approval and with the approval
of the State of Washington Salmon Recovery Funding Board, a grant from whom is funding purchase
of the Property(Due Diligence Period).
5.1.1. Inspections. During the Due Diligence Period,Buyer, its designated
representatives or agents shall have the right at Buyer's expense to (i)perform any and all tests,
inspections, studies, surveys or appraisals of the Property deemed necessary, on any subject,by the
Purchaser(subject to the limitations set forth below and Paragraph 5.1.2 Right of Entry) ; (ii) obtain a
Phase I or Phase II Environmental Assessment on the Property and perform any and all tests,
inspections and studies deemed necessary therewith; and(iii) examine all Due Diligence materials
that Buyer may reasonably request from Seller that are not subject to attorney-client privilege or that
the County is not otherwise prohibited from disclosing by law; (IV) determine to its satisfaction
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whether approvals,permits and variances can be obtained under applicable land use and zoning codes
for Buyers proposed development of the property, (V)determine whether Purchaser's proposed
development of the property is economically feasible.
5.1.2. Right of Entry. Buyer and Buyer's designated representatives or agents shall
have the right and Seller hereby grants to Buyer and Buyer's designated representatives the right to
enter the Property pursuant to a County permit and conduct the tests, investigations and studies set
forth in this Article 5 upon three(3) days advance written notice;provided that such right of entry
will be limited to those times and dates that will not disrupt Seller's use of, or Seller's operations and
activities on the Property. Invasive tests of the Property, such as drilling or excavation shall be
subject to Seller's prior written approval The Buyer will not be permitted to undertake activities that
damage County property. In connection with such inspections, Buyer agrees to hold harmless,
indemnify and defend Seller, its officers, agents and employees, from and against all claims,losses,
or liability, for injuries, sickness or death of persons, including employees of Buyer caused by or
arising out of any act, error or omission of Buyer, its officers,agents,contractors,subcontractors or
employees in entering Seller's property for the above purposes,to the extent not caused by or arising
out of any act,error or omission of Seller, its officers, agents and employees.
5.1.3 Approval of King County Council. Seller's obligation to close is contingent
upon approval of the Metropolitan King County Council by ordinance of the conveyance of the
Property from Seller to Buyer. This contingency shall automatically be removed upon the effective
date of such ordinance. If this contingency is not removed by 5:00 p.m. on the day before the
Closing date set forth in this Agreement or as otherwise agreed to in writing by the Parties,Buyer or
Seller may terminate this Agreement upon written notice to the other and neither party shall have any
further rights or obligations to the other hereunder.
ARTICLE 6
COVENANTS OF SELLER PENDING CLOSING
6.1. CONDUCT,NOTICE OF CHANGE. Seller covenants that between the date hereof and
the Closing Date,Seller shall take all such actions as may be necessary to assure that the
representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing
Date(except such representations,warranties and matters which relate solely to an earlier date), and
all covenants of Seller set forth in this Agreement which are required to be performed by it at or prior
to the Closing Date shall have been performed at or prior to the Closing Date as provided for in this
Agreement. Seller shall give Buyer prompt written notice of any material change in any of the
information contained in the representations and warranties made in Article 3 or elsewhere in this
Agreement which occurs prior to the Closing Date.
ARTICLE 7
COVENANTS OF BUYER PENDING CLOSING
7.1. CONDUCT,NOTICE OF CHANGE. Buyer covenants that between the date hereof and
the Closing Date, Buyer shall take all such actions as may be necessary to assure that the
representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing
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Date(except such representations, warranties and matters which relate solely to an earlier date), and
that all covenants of Buyer set forth in this Agreement which are required to be performed by it at or
prior to the Closing Date shall have been performed at or prior to the Closing Date as provided for in
this Agreement. Buyer shall give Seller prompt written notice of any material change in any of the
information contained in the representations and warranties made in Article 3 or elsewhere in this
Agreement which occurs prior to the Closing Date.
ARTICLE 8
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
All obligations of Buyer hereunder are subject to the fulfillment of each of the following
conditions at or prior to the Closing Date, and Seller shall exert its best efforts to cause each such
condition to be fulfilled.
8.1. DELIVERY OF DOCUMENTS. Seller shall have delivered to Buyer at or prior to Closing
all documents required by the terms of this Agreement to be delivered to Buyer unless a different
time period is expressly provided for in this agreement.
8.2. REPRESENTATIONS9 WARRANTIES AND COVENANTS. All representations,warranties
and covenants of Seller contained herein or in any document delivered pursuant hereto shall be true
and correct in all material respects when made and as of the Closing Date.
8.3. OBLIGATIONS. All obligations required by the terms of this Agreement to be
performed by Seller at or before the Closing Date shall have been properly performed in all material
respects.
8.4. TITLE. Any and all matters shown or referred to in the Title Commitment to which
Buyer has objected within the time specified in Section 4.1, shall have been cured by Seller, unless
such objections have been waived by Buyer.
8.5. APPROVAL OF COUNSEL. Counsel shall have approved this document as to form as
evidenced by such counsel's signature on this Agreement.
8.6. CONDEMNATION. No portion of the Purchased Assets shall have been taken or
damaged by any public or quasi-public body, and Seller shall not have transferred any portion of the
Purchased Assets to any such body in lieu of condemnation.
8.7. TITLE. Seller shall have caused the Title Company to be irrevocably committed to
issue an owner's policy of title insurance for the full amount of the Purchase Price, effective as of the
Closing Date, containing no exceptions other than the Permitted Exceptions.
ARTICLE 9
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
All obligations of Seller to close on the Closing Date are subject to the fulfillment of each of
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the following conditions at or prior to the Closing Date, and Buyer shall exert its best efforts to cause
each such condition to be so fulfilled:
9.1. REPRESENTATIONS,WARRANTIES AND COVENANTS. All representations,warranties
and covenants of Buyer contained herein or in any document delivered pursuant hereto shall be true
and correct in all material respects when made and as of the Closing Date.
9.2. OBLIGATIONS. All obligations required by the terms of this Agreement to be
performed by Buyer at or before the Closing Date shall have been properly performed in all material
respects.
9.3. DELIVERY OF DOCUMENTS. Buyer shall have delivered to Seller at or prior to Closing
Date all documents required by the terms of this Agreement to be delivered to Seller.
9.4 APPROVAL OF COUNSEL. Counsel shall have approved this document as to form as
evidenced by such counsel's signature on this Agreement.
ARTICLE 10.
CLOSING
10.1. CLOSING/CLOSING DATE. The Closing shall take place on or before June 30, 2009,
unless the Buyer's grant funding contingency period is extended pursuant to a written agreement
executed by Buyer, Seller,and the State of Washington Salmon Recovery Funding Board. The
contingency period may be extended by the Buyer by mutual agreement with Seller. Upon execution
of this Agreement,the parties agree to establish an account with Pacific Northwest Title Company
(the "Escrow Agent"). The Escrow Agent shall serve as Closing Agent for the transaction
contemplated herein and the Closing shall occur in the offices of the Escrow Agent in Seattle,
Washington. The title,right of possession and interest to the Purchased Assets shall pass to Buyer
upon the Closing Date and thereafter the risk of loss thereof shall be the responsibility of Buyer.
10.2. PRORATION& All prorations, unless otherwise specifically provided for herein, shall
be made as of the Closing Date.
101.1. Closing Costs. Buyer has satisfied itself as to the condition of Title for the
property. Seller shall pay for the owner's standard coverage title policy. Buyer and Seller shall each
pay one half of escrow fees, if any. Buyer shall pay for all additional closing costs associated with
this purchase and sale, including but not limited to,the cost of its own attorneys' fees. Except as
otherwise provided in Section 10.2 of this Agreement, all other expenses hereunder shall be paid by
the party incurring such expenses.
10.2.2. Taxes. Seller shall pay,to the extent not exempt by law, any applicable real
estate taxes, excise tax or assessments ("Taxes")on the Property.
10.3. SELLER'S DELIVERY OF DOCUMENTS AT CLOSING. At the Closing, Seller will deliver
to Buyer the following properly executed documents:
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(a) Seller's Certificate of Non-Foreign Status substantially in the form of
EXEIIBIT C, attached hereto;
(b) A Bargain and Sale Deed conveying the Property, which shall be in
substantially similar form to that attached hereto as EXHIBIT B;
10.4 BUYER'S DELIVERY OF DOCUMENTS AND PURCHASE PRICE AT
CLOSING. At Closing,the Buyer shall deliver cash to Seller in the amount of the Purchase Price.
ARTICLE 11.
TERMINATION
11.1. TERMINATION BY EITHER PARTY. Either party may terminate this Agreement if a
condition to its obligation to consummate the transactions contemplated by this Agreement as set
forth in Articles 8 and 9 has not been satisfied by the Closing Date. In that event, if neither party is in
default under this Agreement,the parties shall have no further obligations or liabilities to one another
and all documents delivered into escrow shall be returned to the appropriate party.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
12.1. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each statement,
representation,warranty, indemnity, covenant, and agreement made by Seller and Buyer in this
Agreement or in any document,certificate or other instrument delivered by or on behalf of Seller or
Buyer pursuant to this Agreement or in connection herewith shall be deemed the representation,
warranty, indemnity, covenant and agreement of Seller and Buyer and shall survive the Closing Date
unless a different time period is expressly provided for in this Agreement and all such statements are
made only to and for the benefit of the parties hereto,and shall not create any rights in other persons.
12.2. DEFAULT. In the event of any litigation hereunder,the Superior Court of King
County,Washington shall have the exclusive jurisdiction and venue.
12.3. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
12.4. NOTICES. Any and all notices or other communications required or permitted to be
given under any of the provisions of this Agreement shall be in writing and shall be deemed to have
been duly given upon receipt when personally delivered or sent by overnight courier or certified or
registered mail, return receipt requested. All notices shall be addressed to the parties at the addresses
set forth below or at such other addresses as any parties may specify by notice to all other parties and
given as provided herein-
If to Buyer: City of Kent
Mike Mactutis
Environmental Engineering Manager
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220 Fourth Avenue South
Kent, Washington 98032
If to Seller: Bob Thompson,Real Estate Services Section
Facilities Management Division
Department of Executive Services
King County Administration Building
500 Fourth Avenue,Room 500
Seattle, Washington 98104-2337
With a copy to: King County Prosecuting Attorney
Attn: Tim Barnes
400 King County Court House
516 Third Avenue
Seattle, Washington 98104
12.5. ENTIRE AGREEMENT AND AMENDMENT. This writing(including the exhibits attached
hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and
may not be modified or amended except by a written agreement specifically referring to this
Agreement and signed by all parties hereto.
12.6. SEVERABILITY. In the event any portion of this Agreement shall be found to be
invalid by any court of competent jurisdiction,such holding shall not impact or affect the remaining
provisions of this Agreement unless that court of competent jurisdiction rules that the principal
purpose and intent of this contract should and/or must be defeated, invalidated or voided.
12.7. WAIVER. No waiver of any breach or default hereunder shall be considered valid
unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a
waiver of any prior or subsequent breach or default.
12.8. BINDING EFFECT. Subject to Section 12.14 below,this Agreement shall be binding
upon and inure to the benefit of each party hereto, its successors and assigns.
12.9. LEGAL RELATIONSHIP. The parties to this Agreement execute and implement this
Agreement solely as Seller and Buyer. No partnership,joint venture or joint undertaking shall be
construed from this Agreement.
12.10. CAPTIONS. The captions of any articles,paragraphs or sections contained herein are
for purposes of convenience only and are not intended to define or limit the contents of said articles,
paragraphs or sections.
12.11. COOPERATION. Prior to and after the Closing Date the parties shall cooperate,shall
take such further action and shall execute and deliver further documents as may be reasonably
requested by the other party in order to carry out the provisions and purposes of this Agreement.
12.12. GOVERNING LAw. This Agreement and all amendments thereof shall be governed by
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and construed in accordance with the laws of the State of Washington applicable to contracts made
and to be performed therein,without giving effect to its conflicts of law provisions.
12.13. NON-MERGER. The terms and provisions of this Agreement will not merge in,but will
survive, the Closing of the transaction contemplated under this Agreement.
12.14. ASSIGNMENT. Buyer shall not assign this Agreement or any rights hereunder without
Seller's prior written consent,which shall not be unreasonably withheld.
12.15. NEGOTIATION AND CONSTRUCTION. This Agreement and each of its terms and
provisions are deemed to have been explicitly negotiated between the parties, and the language in all
parts of this Agreement will, in all cases,be construed according to its fair meaning and not strictly
for or against either party. All parties acknowledge and represent, as an express term of this
Agreement, that they have had the opportunity to obtain and utilize legal review of the terms and
conditions outlined in this Agreement, although each party must determine if they wish to obtain and
pay for such legal review Each party shall be and is separately responsible for payment of any legal
services rendered on their behalf regarding legal review of the terms found in tlus Agreement.
12.16. EXHIBITS. The following Exhibits described herein and attached hereto are fully
incorporated into this Agreement by this reference:
EXHIBIT A Legal Description of Property
EXHIBIT B Bargain and Sale Deed
EXHIBIT C Certificate of Non-Foreign Status
THis AGREEMENT by and between KING COUNTY, a municipal corporation and political
subdivision of the State of Washington(the"Seller") and the CITY OF KENT, a municipal
corporation of the State of Washington(the"Buyer"), for purchase of the Mullen Slough Natural
Area, is executed as of the date and year first above written,
SELLER:
KING COUNTY, a political subdi ision of the State of Washington
A
Harol McNelly
(Acting)Manager,Real Estate Se ices Section
APPROV FORM:
By ",l
Senior')epffy Prosecuting Attorney
Page112
BUYER:
CITY OF KENT,a municipal co oration of the State of Washington
Its
BPRO1^ AS TO FOith l
City Attorney �� `/
STATE OF WASHINGTON
ss.
COUNTY OF KING �
On this day personally appeared before m ,to me known to be the Real
Estate Services Section Manager of KING COUN a municipal corporation and political
subdivision of the State of Washington that executed the foregoing instrument, and acknowledged
such instrument to be the free and voluntary act and deed of such municipal corporation and political
subdivision,for the uses and purposes therein mentioned, and on oath stated that he was duly
authorized to execute such instrument. s�
GIVEN UNDER MY HAND AND OFFICIAL SEAL this day ofaav , 2009.
�✓QIiO� ted A�
Name ,ar( n,fYGr
�TAA� NOTARY PUBLIC in and for the State of Washington, J
residing at SEATTLE,WASHINGTON
My Commission Expires NOVEMBER 9,2 V%WCh3On 201�
s� �a
Page 13
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this day personally appeared before me e. ,the
�Acw6r of 6A, Kent known
to me to be&e Buyer that executed the foregoing instrument, and acknowledged such instrument to
be [his er free and voluntary act and deed for the uses and purposes therein mentioned, and on oath
stated that[he/(e was duly authorized to execute such instrument.
GIVEN UNDER HAND AND OFFICIAL SEAL this day of
12009.
Printed N d
NOTARY PUBLIC id and for the State of Washington,
residing at /fin L(1tr�
My Commission E ires 7— —/Z
r
Page 14
EXHIBIT A
Property Legal Description of the Mullen Slough Natural Area
Assessor's Parcel Number 232204-9028
THAT PORTION OF THE FOLLOWING DESCRIBED PROPERTY LYING NORTH OF
THE NORTH BOUNDARY OF SR 516 AS CONDEMNED IN KING COUNTY SUPERIOR
COURT CAUSE NUMBER 741396:
THAT PORTION OF THE SOUTH HALF OF SECTION 23,TOWNSHIP 22 NORTH,
RANGE 4 EAST,WILLAMETTE MERIDIAN,IN KING COUNTY,WASHINGTON,
DESCRIBED AS FOLLOWS:
Beginning at a point 1586 feet east and 925 feet north of the southwest corner of said Section;
Thence north 829 feet;
Thence north 50*29'00" east 410 feet;
Thence north 71'S9'00" east 780 feet;
Thence north 85'S9'00" 272 feet;
Thence south 1365 feet;
Thence west 1343 feet to the Point of Beginning;
EXCEPT that portion thereof lying south of the White River,East of County Road No. 722,
and north of County Road No 76;
ALSO EXCEPT that portion condemned in King County Superior Court Cause No. 741396 for
State Highway No 516.
End of Legal Description
Page 115
EXHH)IT B TO THE PURCHASE AND SALE AGREEMENT
BARGAIN AND SALE DEED
GRANTOR KING COUNTY,WASHINGTON
GRANTEE CITY OF KENT
LEGAL PORTION OF THE SOUTH Y2 OF 23-22-04
TAX ACCT#232204-9028
The Grantor, KING COUNTY, a political subdivision of the State of Washington, for and in
consideration of TWO-HUNDRED EIGHTY THOUSAND DOLLARS ($280,000.00) in hand paid,
bargains, sells and conveys to the City of Kent, a municipal corporation of the State of Washington,
the Grantee,the following described real estate (attached hereto as Exhibit A), situated in the County
of King, State of Washington:
SUBJECT TO THE FOLLOWING COVENANTS,WHICH ARE INTENDED TO BE
RUNNING COVENANTS BURDENING AND BENEFITTING THE PARTIES,
SUCCESSORS AND ASSIGNS:
The open space use restrictions and restrictions on alienation as specified in RCW 84.34.200, King
County Code, Ch. 26 12, and King County Ordinance No. 14714. Buyer covenants to abide by these
uses and restrictions in perpetuity and to convey those same uses and restrictions in perpetuity upon any
future conveyance.
Buyer acknowledges that the Property was purchased for open space purposes with Conservation
Futures funds as authorized by King County Ordinance 14714 and covenants that it shall maintain
the Property in strict conformance with the uses authorized under RCW 84.34.020. Buyer
additionally covenants that it shall abide by and enforce all terms,conditions and restrictions in
Ordinance 14714, including the covenants that the Property will continue to be used for the purposes
contemplated by these Ordinances,which prohibit both active recreation and motorized recreation
(such as off-road recreational vehicles,but allow passive recreation). The Property shall not be
transferred or conveyed except by agreement providing that the Property shall continue to be used
for the purposes contemplated by RCW 84.34.020 and in strict conformance with the uses authorized
and prohibited under Ordinance 14714 and King County Code, Ch. 26.12 . The Property shall not be
converted to a different use unless other equivalent lands and facilities within the County or the City
shall be received in exchange therefore.
AND RESERVED UNTO KING COUNTY WASHINGTON,THE EASEMENT
DESCRIBED IN EXHIBIT B,ATTACHED HERETO.
Dated this 101- day of .' 2009.
Page116
Apr. 29. 2009 1 : 14PM City of Kent No. 9964 P. 3
GRANTOR,KING COUNTY
BY
Real Estate Services Sec4.on(Act ger
GRANTER,CITY OF KENT
ANA BY
Sul
or
STATE OF WASHINGTON 1
J1 ss.
COUNTY OF KING?
On this day personally appeared before me H2af rAl W\P, ULu to me known to
be the —� executed the
foregoing instrument,and acknowledged such instrument Wbe the free and voluntary act and deed
for the uses and purposes therein mentioned,and on oath stated that he was duly authorized to
execute such instrument.
GIVEN UNDER MY HAND AND OPPICtAL S AL this day of 2009.
Printed Name u. br
NoraRY Pusuc in and for the State of Washingto v
residing at SEATTLF,WAIHIN04TON
My Commission Expires
executed tht:
Page 17
Apr. 29. 2009 1 : 13PM City of Kent No. 9964 P. 2
^�
lnt?r`+P'4 ff`i' t}'E' �ISe CL }hry --
STATE OF WA.SHINGTON
ss.
COUNTY OF KING
— On this day personally appeared before me —`Juts Ck� to me — -
known to be the kAewar of
01ki 0 m exe'ctited the roregobig jmt=en4 and
acknowledged the said ittstrttment to be the free and voluntary act and deed for the'uses and purposes
therein mentloned,and that h&fg3kw authorised to exWrte the said instrument.
GIVEN UNDER MY HAND AND OFPic1AL SEAL this day of 2009.
,
Name
N40TY Pumic in and for the State of W ,
residing at WASH NGTON �
my commission Expires y L—
t
ctxz�c.,ute the said insurument.
Page is
EXHIBIT A
TO BARGAIN AND SALE DEED
PROPERTY LEGAL DESCRIPTION OF THE MULLEN SLOUGH NATURAL AREA
ASSESSOR'S PARCEL NUMBER 232204-9028
THAT PORTION OF THE FOLLOWING DESCRIBED PROPERTY LYING NORTH OF
THE NORTH BOUNDARY OF SR 516 AS CONDEMNED IN KING COUNTY SUPERIOR
COURT CAUSE NUMBER 741396:
THAT PORTION OF THE SOUTH HALF OF SECTION 23,TOWNSHIP 22 NORTH,
RANGE 4 EAST,WILLAMETTE MERIDIAN, IN KING COUNTY,WASHINGTON,
DESCRIBED AS FOLLOWS:
Beginning at a point 1586 feet east and 925 feet north of the southwest corner of said Section;
Thence north 829 feet;
Thence north 500 29'00"east 410 feet;
Thence north 71*59100"east 780 feet;
Thence north 85*59'00"272 feet;
Thence south 1365 feet;
Thence west 1343 feet to the Point of Beginning;
EXCEPT that portion thereof lying south of the White River East of County Road No. 722
P Y g � ty
and north of County Road No 76;
ALSO EXCEPT that portion condemned in King County Superior Court Cause No. 741396 for
State Highway No 516.
Page119
EX H1rr B
TO BARGAIN AND SALE DEED
RIVER PROTECTION EASEMENT FOR THE MULLEN SLOUGH NATURAL AREA
ASSESSOR'S PARCEL NUMBER 232204-9028
King County,as Grantor,hereby reserves for itself,for the purposes stated below,a River Protection Easement
over,across,along, in,upon and under that portion of the Property referred to in Exhibit A of the Bargain and
Sale Deed between King County as Grantor and the City of Kent as Grantee,for the Mullen Slough Natural
Area,and more particularly described as follows:
All portions of the above described parcel that are riverward of a line that is parallel to and thirty
(30)feet landward of the stable top of the river bank on the Green River("Easement Area"),as
constructed or reconstructed,together with reasonable ingress and egress upon the property to
access the easement area.
Grantor reserves for itself a perpetual easement for the purposes of accessing and constructing,inspecting,
monitoring,reconstructing,maintaining,repairing,modifying,and removing river bank protection and/or other
flood related works, including installing, inspecting, maintaining and removing all vegetation and any other
appurtenances thereto across,in,under,on,over and upon the following portions of the above described
Easement Area.
Grantee shall have the right at such time as may be necessary and at the Grantee's sole discretion,to enter
upon the Property and to have unimpeded access to, in and through the Easement Area for the purposes of
exercising the Grantee's rights as described herein_
Grantor agrees not to plant non-native vegetation within the Easement Area and not to remove or otherwise
alter any improvements installed by Grantee,including any native vegetation that may be planted and any
flood protection works that may be constructed,within the Easement Area, without the prior approval of
Grantee. Grantor further agrees not to use herbicides within the Easement Area without the prior approval of
Grantee. Nothing contained herein shall be construed as granting any license,permit or right,otherwise
required by law,to Grantor with respect to the Property and the Easement Area
For the purposes of this river protection easement,the tern"native vegetation"shall mean vegetation
comprised of plant species,other than noxious weeds(as identified on the State of Washington noxious weed
list found at Washington Administrative Code Chapter 16-750,as amended from time to time),which are
indigenous to the coastal region of the Pacific Northwest and which reasonably could have been expected to
naturally occur at the site.
Neither Grantor nor Grantee is hereby obligated to future maintenance,repair or other action related to the
above-described exercise of easement rights.This river protection easement and/or any flood related works
constricted or to be constructed within the Easement Area shall not be construed as granting any rights to any
third person or entity, or as a guarantee of any protection from flooding or flood damage,and nothing
contained herein shall be construed as waiving any immunity to liability granted to Grantee by any state
statute,including Chapter 86.12 of the Revised Code of Washington,or as otherwise granted or provided for
by law.
The rights,conditions,and provisions of this easement shall inure to the benefit of and be binding upon the
heirs,executors,administrators,and successors in interest and assigns of Grantor and Grantee.
Page 120
EXHIBIT C
TO BARGAIN AND SALE DED
PERMITTED EXCEPTIONS
Page 21
E)CMrr C
SELLER'S CERTIFICATION OF NON-FOREIGN STATUS
Page 122
SELLER'S CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a United States
real property interest must withhold tax if the transferor is a foreign person. To inform the
transferee that withholding of tax is not required upon the disposition of a United States real
property interest by KING COUNTY("Transferor");the undersigned hereby certifies the
following on behalf of Transferor.
1. Transferor is not a foreign corporation,foreign partnership,foreign trust,or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax Regulations);and
2. Transferor's United States employer identification number is
91-6001327;and
3. Transferor's office address is King County Facilities Management Division,Asset
Development and Management Section,Room 500 King County Administration Building,
500 Fourth Avenue,Seattle,WA 98104
4. Transferor understands that this certification may be disclosed to the Internal Revenue
Service by the transferee and that any false statement contained herein could be punished by fine,
imprisonment,or both.
Under penalties of perjury I declare that I have examined this certification and to the best
of my knowledge and belief it is true,correct and complete,and I further declare that I have
authority to sign this document on behalf of Transferor
Dated this I -)" day of M we ZOOS,
TRANSFEROR:
By:
Title:
Amendment to Mullen Slough Agreement dated 02/21/08
Page 4 of 6
REQUEST FOR MAYOR'S SIGNATURE
KENT Please Fill in All Applicable Boxes
WASH.NGTON
Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT)
Oi ignnator: ����� — w Phone (Originator): 5 --�LS-F
Date Sent: Date Required:
Return Signed Document to �t�`� , - W CONTRACT I FRMINATI0N DATE:
VENDOR NAME: t1 �11a DATE OF COUNCIL APPROVAL: ._:.I5-16q
Brief Explanation of Document:
0-
CCU`^ram
e All Con It rj t5N%ist Be Routed Through the Law Department RECEIVED
FTvs Aiea to be Completed By the Law Department)
Received:
City of Kent
Approval of Law Dept.: �� Office of the Mayor
Law Dept. Comments•
�\S !�(l1 E \OC S s1 Frv� S I �Lur toV� 15 �.�CX 7 ��1CI�tsJ
v P �C M . l l ' l� a,LSD C�J c.. ✓Y1 �,:3� �CkS 4� j IL C 0
"
Date Forwarded to Mayor: y - 21-7- - QL
Shaded Areas to Be Completed by Administration Staff
Received:
rs ,
Recommendations & Comments: oF�ENt
Disposition:
Date Returned:
age5870 • 3/05