HomeMy WebLinkAbout12-072 - Forterra NW - Assignment of Purchase and Sale Agreement (Duwamish Hill Preserve)12 -072
Council Approval 6/18/12
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT "Assignment is entered
into by and between FORTERRA NW, a Washington non profit corporation "Assignor and the CITY
OF TUKWILA, a Washington municipal corporation "Assignee
RECITALS
A. Assignor as Buyer, and EJWJR TUKWILA YARD LLC, a Washington limited liability
company, as Seller, are parties to that certain Purchase and Sale Agreement "Agreement dated June
15, 2012, attached hereto as Attachment A and incorporated herein by this reference, for property located
in the City of Tukwila in King County, Washington (the "Property"), as legally described in Exhibit A to
Attachment A.
B. Assignor desires to assign all of its rights, duties and obligations in the Agreement to Assignee as
allowed under the Agreement, and Assignee desires to assume the same.
AGREEMENT
NOW THEREFORE, intending to be legally bound and for good and valuable consideration,
including the mutual covenants and promises of the parties, the adequacy and receipt of which is hereby
acknowledged, the parties agree as follows:
1. Assignment. Assumptions. and Indemnification. Assignor assigns all of its rights, duties,
and obligations as Buyer in the Agreement to Assignee and Assignee assumes all of the rights, duties, and
obligations of Buyer under the Agreement, and agrees to indemnify and hold Assignor harmless from any
and all claims, costs, and liabilities that may arise under the Agreement related to events occurring after
the date of this Assignment.
This Assignment does NOT include assignment of Assignor's right as Forterra NW to the
donation specified in Agreement Section 10.2(g), which donation is being made by Seller specifically to
Forterra NW to further Forterra NW's nonprofit, conservation mission.
2. Earnest Money Obligation. Assignor has already deposited into escrow the Note under
Agreement Section 4.3, with such Note attached hereto as Attachment B, and Assignee hereby
acknowledges and understands that under this Assignment, Assignee assumes the obligation as Buyer to
deposit or cause to be deposited into escrow immediately available funds in the same amount as the Note,
in accordance with Agreement Section 4.3. Per the Agreement, escrow is through Chicago Title, 701 Fifth
Avenue, Suite 2300, Seattle, WA 98104, and Chicago Title's escrow number for the Property is 1344978.
3. Modification. This Assignment may be modified only by mutual agreement in writing.
4. Authority. Each undersigned party certifies that he or she is fully authorized to enter into
the terms and conditions of this Assignment and to legally execute, and bind such party to, this
Assignment.
5. Captions. The captions of this instrument are solely for the convenience of the parties
and are not a part of this Assignment.
6. Applicable Law. This Assignment shall be governed by the laws of the State of
Washington.
I Ob 2 O e i 3-� n a-i- 5
7. Counternarts. This Assignment may be executed in any number of counterparts, or by
facsimile or "pdf' copies, any one of which shall be deemed an original and all of which taken together
shall constitute one and the same instrument, and any of the parties hereto may execute this Assignment by
signing any such counterpart.
8. Recitals. Each recital set forth above is fully incorporated into this Assignment.
Agreed to and accepted this day of J kAtJQ 2012.
Assignor:
FORTERRA NW
Assignee:
CITY OF TUKWII.A
K
By: By&
�P.le Jq A4 Q.�
Name: Name:
Title: C"� 1/1 C�eJiCQ,e/m Title: M t,-
Attachment A
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT "Agreement is entered into by and between
FORTERRA NW, a Washington nonprofit corporation, its successors or assigns "Buyer and EJWJR
TUKWILA YARD LLC, a Washington limited liability company "Seller as of the date appearing in
the last paragraph of the body of this Agreement "Effective Date Buyer and Seller may be referred to
jointly-herein as the "Parties."
RECITALS OF FACT
A. Seller is the owner of approximately 1.90 acres of real property located in the City of
Tukwila, King County, Washington (the "Property"), more particularly described in Exhibit A attached
hereto, that is the subject of this Agreement.
B. Buyer desires to purchase the Property because of its conservation values, including
without limitation its value for future public open space and recreation use as an addition to the adjacent
Duwamish Hill Preserve, and its value in protecting and restoring salmon habitat along the Duwamish
River. Buyer is a conservation organization having among its purposes the acquisition of open space and
important ecological systems in King, Snohomish, Pierce, Kittitas and Mason counties and surrounding
counties in the state of Washington. Buyer is exempt from taxation under Section 501(c)(3) of the
Internal Revenue Code of 1986 (as amended from time to time, the "Code and is included in the
"Cumulative List of Organizations" described in Section 170(c) of the Internal Revenue Code published
by the Internal Revenue Service. Buyer is not a private foundation within the meaning of Section 509(a)
of the Code.
C. Seller acknowledges that upon acquisition of the Property, Buyer shall be free to use
and/or dispose of the Property in any manner Buyer deems appropriate and that Buyer may sell the
Property for any price Buyer deems appropriate to any subsequent buyer provided that the end use of the
Property is in accordance with Buyer's charitable purpose and proceeds of any such sale are devoted to
Buyer's charitable purposes.
D. Seller desires to sell the Property (as defined in Section 1) to Buyer, and Buyer desires to
purchase the Property from Seller on the terms and conditions set forth in this Agreement. Seller
intends that the difference between the purchase price and fair market value of the Property (as
detailed in Section 4 below) shall be a charitable contribution to Buyer.
E. Seller desires additional time after the sale of the Property to Buyer to remove Seller's
industrial equipment from Parcel A of the Property (as defined in Section 1 below) and Buyer desires to
allow Seller additional time to remove such equipment subject to the terms and conditions set forth in
this Agreement.
Intending to be legally bound, for good and valuable consideration, including the mutual
covenants and promises of the Parties, the adequacy and receipt of which is hereby acknowledged, the
Parties agree as follows:
1. Property The Property subject to this Agreement consists of all of the following:
(a) Two parcels located along South 115th Street near East Marginal Way in
Tukwila, Washington, consisting of approximately 1.9 acres total, as legally defined on Exhibit A and as
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generally depicted on the map at Exhibit B. The larger of the two parcels has King County Tax ID#
102304 -9085 (hereinafter "Parcel A," legally defined on Exhibit A) and consists of approximately 1.75
acres of flat, cleared open land currently used for storing industrial equipment; adjacent to the Duwamish
Hill Preserve owned by the City of Tukwila. The other, much smaller parcel has King County Tax ID#
102304 -9002 (hereinafter "Parcel B," legally defined on Exhibit A) and consists of a narrow strip of
vacant land along the Duwamish River and a very small strip of land on the opposite side of South 115th
Street.
(b) All of Seller's rights, privileges and easements appurtenant to the Property,
including without limitation all minerals, oil, gas and other hydrocarbon substances on the Property, all
development rights, air rights, water and water rights relating to the Property, and any and all easements,
rights -of -way and other appurtenances used in connection with the beneficial use and enjoyment of the
Property.
2. Purchase. Seller shall sell and convey the Property to Buyer, and Buyer shall purchase
the Property from Seller, on the terms, covenants and conditions set forth in this Agreement. Buyer
acknowledges that prior to Closing, as defined below, Buyer shall have inspected the Property. Buyer
will be purchasing the Property in its present physical condition, "As Is," except for the express
covenants, representations and warranties and indemnities contained in this Agreement. As of the
Effective Date, Buyer agrees that Seller has made no representations or warranties or agreements of any
kind or nature regarding the Property, except for the express warranties contained in this Agreement.
3. Assignment by Buver. Buyer may assign its rights and responsibilities under this
Agreement to another conservation entity, a municipality or government agency, or other organization
whose objectives with respect to the Property are substantially similar to those of Buyer. Should Buyer
assign its rights under this Agreement, the assignee shall assume all rights and responsibilities of Buyer
hereunder including without limitation the obligation to provide Seller additional time beyond closing to
remove its industrial equipment in accordance with Section 8.5 below.
4. Purchase Price.
4.1. Amount. The purchase price "Purchase Price for the Property shall be One
Million Forty-Five Thousand and no /100 Dollars ($1,045,000.00 USD). An appraisal performed in
accordance with the Uniform Standards of Professional Appraisal Practice, and with an effective date of
March 22, 2012, established the fair market value "FMV of the Property at One Million Two Hundred
and Sixty Thousand Dollars ($1,260,000.00 USD). Seller acknowledges and understands that the
Purchase Price is less than FMV, and Seller hereby states that it enters into this Agreement to sell the
Property for less than FMV of its own free will and volition and that it intends that the difference
between the Purchase Price and FMV shall be a charitable contribution to Buyer. Seller acknowledges
and understands that Buyer has not made and does not hereby make any representation as to the tax
consequences of the transaction contemplated by this Agreement. Seller will obtain independent tax
counsel and be solely responsible for compliance with the gift value substantiation requirements of the
Internal Revenue Code. Buyer hereby agrees to provide Seller with timely acknowledgement of the gift
resulting from the difference between the Purchase Price and FMV in such form as the Internal Revenue
Service may require of Buyer as the "donee" of the gift.
4.2. Pavment. Buyer shall pay Seller the Purchase Price in cash at Closing.
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4.3 Earnest Monev. Upon execution of this Agreement, Buyer shall execute and
deposit with Chicago Title, 701 5th Avenue Suite 2300, Seattle, WA 98104 (the "Escrow Holder" or
"Title Company an original promissory note in favor of Seller in the amount of Five Thousand Dollars
and no /100 ($5,000.00) (the "Note Within ten (10) business days of Buyer's notice that the
contingencies described in Sections 5.3 and 7 have been satisfied or removed, or upon waiver of the
same, Buyer shall deposit or cause to be deposited immediately- available funds in the same amount as
the Note "Deposit which Deposit shall be held in an interest bearing money market -type account.
Interest shall be for Buyer's benefit. Provided that Buyer is not in default under the terms of this
Agreement, the original Note or Deposit defined above, shall be returned or refunded to Buyer unless all
of Buyer's conditions in this Agreement are satisfied. The Deposit shall be applied to the Purchase Price
at Closing. IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE
PURCHASE OF THE PROPERTY, THE DEPOSIT SHALL BE FORFEITED TO SELLER AS
LIQUIDATED DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER.
Buyer and Seller agree that the liquidated damages represent a reasonable sum considering all of the
circumstances existing on the date of this Agreement and represent a reasonable estimate of the losses
that Seller will incur if Buyer fails to purchase the Property after all conditions precedent to Buyer's
performance have been completely satisfied in Buyer's sole and absolute discretion.
5. Title.
5.1. Condition of Title. Title shall be insurable by a 2006 ALTA Owner's Standard
Coverage Policy in the amount of the Purchase Price, subject only to the Permitted Exceptions (defined
below). Seller shall satisfy all reasonable and customary requirements of the Title Company in
connection with issuance of the title policy (the "Title Policy").
5.2. Title Insurance Commitment. Seller shall have ten (10) business days from the
Effective Date to provide Buyer with a current title insurance commitment issued by Chicago Title., 701
5th Avenue Suite 2300, Seattle, WA 98104, showing marketable title to the Property as currently vested
in Seller and committing to insure such title in Buyer by issuance of the Title Policy "Commitment
Buyer understands and acknowledges that Seller may not have marketable title to Parcel B. In the event
the current title insurance commitment under this section does not show marketable title to Parcel B as
currently vested in Seller, Buyer may choose to: 1) proceed with the purchase of the Property in its
entirety and attempt to obtain clean title to Parcel B after Closing by whatever methods Buyer deems
appropriate; or 2) proceed with the purchase only of Parcel A under the terms of this Agreement. Should
Buyer choose to purchase the Property in its entirety, Seller hereby agrees to provide all documentation
and other assistance as may be necessary to help Buyer obtain clean title to Parcel B.
5.3. Review of Title. Buyer shall have thirty (30) days from the receipt of the
Commitment provided by Buyer to notify Seller in writing of any objection Buyer, in its sole discretion,
may have to any exceptions shown on the Commitment "Title Objections General taxes due after
Closing and those exceptions disclosed in the Commitment that Buyer does not disapprove, and those
exceptions listed on Exhibit C constitute permitted exceptions "Permitted Exceptions Buyer's failure
to provide written notice in accordance with this Section constitutes Buyer's acceptance of all conditions
on title to the Property. Within ten (10) days of Seller's receipt of Buyer's written notice, Seller shall
provide Buyer with written notice of the exceptions in Buyer's Title Objections that Seller agrees to
remove. Seller's failure to provide written notice in accordance with this Section constitutes Seller's
rejection of Buyer's Title Objections and Buyer shall then have five (5) days to provide Seller with
written notice of termination of this Agreement. Buyer's failure to provide written notice of termination
in accordance with this Section shall constitute Buyer's waiver of all Title Objections. To the extent
Seller has actual knowledge, Seller shall notify Buyer of any liens, leases, encumbrances, easements,
restrictions, conditions, covenants, rights -of -way and other matters affecting title to the Property that are
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created and which may appear of record or be revealed by survey or otherwise after the date of the
Commitment but before the Closing (collectively, "Intervening Exceptions Buyer's Objections and
Seller's response to Buyer's Objections shall be subject to the same requirements as the exceptions
included under the original Commitment.
6. Conditions Precedent.
6.1. Conditions to Purchase. Buyer's obligations with respect to purchase of the
Property and the Closing are subject to fulfillment of the conditions precedent Buver's Conditions
Precedent described below, or waiver thereof by Buyer, not later than the date specified in Section 7.4.
(a) Title Policv. All requirements set forth in the Commitment shall have
been satisfied or waived by the Title Company and the Title Company shall be prepared to issue the Title
Policy as described in Section 5.
(b) Moratorium. No reassessment, reclassification, rezoning or other change
in judicial or administrative decision or proceedings (including amendments and modifications of any of
the foregoing) pending or proposed to be imposed by any governmental or quasi governmental authority
or any public or private utility having jurisdiction over the Property shall have occurred.
(c) Zoning: Survev.. There are no existing violations of zoning ordinances
or other laws, ordinances or restrictions applicable to the Property; there are no encroachments upon the
Property; and there are no other matters of survey that, in Buyer's sole discretion after examination of a
survey of the Property, would affect Buyer's intended uses and purposes.
(d) No Notices. Seller has not received actual written notice from any
governmental authority that existing uses of the Property are not in full compliance with all applicable
zoning laws (and applicable variances) and any other local, municipal, regional, state or federal
requirements or that the improvements on the Property do not comply with all applicable building, safety,
health, zoning, environmental, subdivision and other laws, ordinances and regulations.
(e) No Actions or Proceedings. There is no action, proceeding or
investigation, whether in the nature of eminent domain or otherwise, pending or threatened with respect
to the title, ownership, maintenance, use or operation of the Property.
(f) No Environmental Violations. The Property is not in violation of any
federal, state or local law, ordinance or regulation relating to industrial hygiene or to the environmental
conditions on, under, above or about the Property, including but not limited to soil and groundwater
conditions.
(g) Representations. Warranties and Covenants of Seller. Seller shall have
performed each and every agreement to be performed by Seller under this Agreement, and Seller's
representations and warranties in this Agreement shall be true and correct as of the Closing.
(h) No Adverse Changes. As of the Closing, there shall have been no
adverse change in the physical condition of the Property from the date of this Agreement.
(i) Seller's Deliveries. Seller shall have delivered each of the items
described in Section 7.1 to Buyer and in Section 10.1 to Escrow Holder.
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0) Appraisal. Buyer shall have obtained, at its sole cost and expense,
an appraisal of the Property in form, amount and substance satisfactory to Buyer in its sole and absolute
discretion.
(k) Financing. Buyer shall have secured financing for the Property in
an amount sufficient to pay the Purchase Price in full on Closing and otherwise on terms and conditions
acceptable to Buyer in Buyer's sole and absolute discretion. "Financing" for purposes of this Agreement
includes all sources of funding which Buyer may choose to pursue and utilize in Buyer's sole and
absolute discretion, including without limitation public and private grants, local government funding, etc.
(1) No Seller Bankruntcv. If at any time prior to Closing, (i) there shall be
filed against or by Seller a petition in bankruptcy or insolvency or a petition seeking to effect any plan or
other arrangement with creditors or seeking the appointment of a receiver and the same is not discharged
or dismissed before Closing; (ii) a receiver or liquidator is appointed for all or substantially all of Seller's
property; (iii) Seller makes an assignment for the benefit of creditors or takes any other similar action for
the benefit or protection of creditors, then Buyer shall have the right, in its sole and absolute discretion
and in addition to all other remedies available to Buyer pursuant to this Agreement or at law or in equity,
to cancel and terminate this Agreement after which the Note or Deposit shall be returned to Buyer and
neither party shall have any further rights or obligations under this Agreement.
(m) Buver's Governing Bodv Annroval. Buyer shall have obtained such
formal authorization from its governing body (i.e. Forterra NW's board of directors, or an assignee's city
council, tribal council, etc. as appropriate) as may be required to consummate the purchase and sale
contemplated by this Agreement.
6.2. Benefit of Buver. The Buyer's Conditions Precedent are solely for the benefit of
Buyer and may be waived only in writing by Buyer. Buyer shall at all times have the right to waive any
condition. The waiver by Buyer of any condition in any specific circumstances shall not be a waiver of
such condition with respect to any other circumstances or a waiver of any other condition and shall not
relieve Seller of any liability or obligation with respect to any representation, warranty, covenant or
agreement of Seller, unless the waiver expressly so provides.
6.3. Termination. If any Buyer's Conditions Precedent is not timely fulfilled and is
not waived by Buyer, Buyer may terminate this Agreement by written notice to Seller and Escrow Holder
shall, if Buyer so instructs, return to the parties all funds and documents deposited by them, respectively,
into Escrow.
7. Investigation of the Pronertv.
7.1. Seller's Initial Deliveries. Within seven (7) days after the Effective Date, Seller
shall, at its sole expense, complete and deliver to Buyer the form included in Exhibit D in accordance
with Revised Code of Washington 64.06.015 "Seller's Disclosure Documentation and other materials
to the extent currently in actual possession of Seller or Seller's property manager concerning the Property
that Buyer deems necessary to evaluate the Property completely (including, without limitation, all
surveys and maps).
7.2. Entrv. Without limiting any other rights of Buyer under this Agreement, as of
the Effective Date, Buyer and Buyer's agents and employees shall have the right to conduct soils,
engineering, environmental and other tests at the Property at Buyer's sole expense. Seller agrees to
cooperate with any such investigations, inspections, or studies made by or at Buyer's direction. The
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exercise by Buyer of any of the preceding rights or any other act of Buyer shall not negate any
representation, warranty or covenant of Seller, or modify any of Buyer's rights or Seller's obligations in
the event of any breach by Seller of any of its representations, warranties or covenants under this
Agreement. Buyer shall indemnify and hold Seller harmless from any and all damages, expense, liens or
claims (including attorneys' fees) arising from Buyer's negligence or actions in exercise of its rights
under this Section 7.2 or failure to pay third parties; the provisions of this indemnity shall survive the
termination or completion of this Agreement.
7.3. Environmental Assessment. Buyer may obtain such environmental assessments
of the Property as Buyer deems appropriate.
7.4. Period for Investieation. Closing of this transaction is conditioned on Buyer's
satisfaction with the Property, the suitability of the Property for Buyer's intended uses and the feasibility
of this transaction in Buyer's sole and absolute discretion. Buyer shall have no more than eighty (80)
days from the Effective Date to conduct its investigation (the Contingencv Period If Buyer fails to
notify Seller in writing that this condition is satisfied or waived prior to 5:00 p.m. Pacific Time on the
final day of the Contingency Period, then Buyer shall be deemed satisfied with the Property and this
condition shall be waived. If Buyer terminates this Agreement as provided under this Section, and
provided Buyer is not otherwise in default under this Agreement, then the Deposit shall be returned to
Buyer and, except as provided in Section 7.2, neither party shall be subject to a claim by the other for
damages of any kind with respect to this Agreement or Buyer's attempt to purchase the Property.
In the event the investigation takes longer than expected, the Parties may
negotiate to extend the Contingency Period as necessary to complete feasibility studies and /or
negotiations related to the Property. Regardless of the period for investigation, the Parties hereby
wish to express their mutual desire to proceed to Closing as soon as possible, and each agrees to
attend to its obligations and responsibilities under this Agreement in as expeditious a manner as
circumstances allow.
Seller's Oblieations. Before the Closing Seller shall, at its sole expense:
8.1. Promptly notify Buyer upon receiving actual written notice of any fact or event
that would make any of the representations or warranties of Seller contained in this Agreement untrue or
misleading in any material respect or that would cause Seller to be in violation of any of its covenants or
other obligations hereunder.
8.2. Promptly notify Buyer upon receiving actual written notice of any claim or
pending litigation affecting the Property, or notice of any event, transaction, or occurrence before Closing
that would materially adversely affect the Property or any part thereof.
8.3. Maintain the Property in good order, condition and repair, and otherwise operate
the Property and maintain its business records in the same manner as before the making of this
Agreement, the same as though Seller were retaining the Property.
8.4 Maintain all casualty, liability and hazard insurance currently in force with
respect to the Property through the Closing without diminution in coverage.
8.5 Remove all of Seller's personal property and ensure removal of any property
owned by third parties from the Property, with the exception of the multiple pieces of large
industrial /construction equipment consisting primarily of tower crane components "industrial
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equipment which currently occupy much of Parcel A. Buyer understands and acknowledges that
additional time beyond closing is needed to remove such industrial equipment, and hereby agrees to
provide Seller the necessary time under the following terms and conditions:
(a) Deadline: Seller shall remove all industrial equipment from the Property
by 5 p.m. PST on December 31, 2012. At any time prior to December 31, 2012, the parties may by written
mutual agreement extend the deadline. Should the parties agree to any extension of the deadline, Seller
shall pay monthly rent to Buyer during such extension at the rate of $6,080.00. After the deadline or any
extension thereof, any Seller personal property, including without limitation industrial equipment, and
any debris remaining on the Property may be disposed of by Buyer within Buyer's sole and absolute
discretion, and Seller shall be responsible for any and all costs associated with such disposal.
(b) Permitted Use: Upon closing, the real property, improvements, and all
permanent fixtures including any fences shall become and remain the property of Buyer; Seller shall only
have the right to access and use Parcel A of the Property, and only for the purpose of disassembling and
removing the industrial equipment on the timeline stated herein. Other than as explicitly stated in this
Section 8.5, Seller's rights to the Property shall cease upon closing.
(c) Utilities. Seller shall pay for all utilities, if any, through the deadline for
equipment removal or any extension thereof.
(d) Hazardous Substances. Seller shall not, without first obtaining Buyer's
prior written approval, generate, release, spill, store, deposit, transport or dispose of (collectively "Release
any hazardous substances, sewage, petroleum products, radioactive substances, medicinal, bacteriological,
or disease- producing substances, hazardous materials, toxic substances or any pollutants or substances
defined as hazardous or toxic in accordance with applicable federal, state, and local laws and regulations in
any reportable quantities (collectively "Hazardous Substances in, on or about the Property. In the event,
and only in the event, Buyer approves Release of Hazardous Substances on the Property, Seller agrees that
such Release shall occur safely and in compliance with all applicable federal, state and local laws and
regulations. Seller shall indemnify, hold harmless and defend Buyer from any and all claims, liabilities,
losses, damages, clean-up costs, response costs, and expenses, including reasonable attorneys fees, arising
out of or in any way related to a Release by Seller, or any of its agents, representatives, or employees, or to
the presence of such Hazardous Substances in, on or about the Property occurring at any time after the
closing date to the full extent of Seller's liability therefor.
(e) Indemnification. Seller shall defend, indemnify, and hold harmless Buyer,
its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or
liabilities for injury or death of any person, or for the loss or damage to property, which arises out of Seller's
use of the Property, or from any activity, work or thing done, permitted, or suffered by Seller in or about the
Premises, except only such injury or damage as shall have been occasioned by the negligence of the Buyer.
(f) Liabilitv Insurance. Seller, at its expense, shall obtain and maintain
continuously comprehensive general liability insurance in the amount of $1,000,000 combined single limit
for bodily injury, property damage and completed operations /products liability coverage. Said policy shall
name the Buyer as an additional insured and state that it is primary over any insurance carried by Buyer. In
the event of nonrenewal, cancellation or material change in the coverage provided, thirty (30) days written
notice shall be furnished to Buyer prior to the date of nonrenewal, cancellation or change.
Seller shall provide a Certificate of Insurance or, upon request of Buyer, a
duplicate of the policy as evidence of insurance protection provided. This insurance shall not be canceled or
reduced without prior written notice to Buyer at least thirty (30) days in advance of the cancellation.
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(g) Liens. Seller shall keep the Property free from liens arising out of
obligations incurred by Seller. Upon written request from Buyer, Seller will furnish written proof of
payment of any charge which, if not paid, could provide the basis for a lien on the Property.
(h) Buver's Use. Following closing, Buyer may access and use the Property
at any time and in any manner Buyer wishes, provided such access and/or use does not interfere with
Seller's disassembly and/or removal of industrial equipment from Parcel A.
(i) Repairs and Maintenance. Seller agrees to maintain Parcel A and to
repair any and all damage occurring to Parcel A as a result of Seller's use under this Section 8.5.
0) Compliance With All Laws and Regulations. In using the Property,
Seller shall comply with all applicable laws, ordinances and regulations from any and all authorities
having jurisdiction.
(k Failure to Comply: Seller's failure to comply with the terms and
conditions of this Section 8.5 gives Buyer the right to require Seller to immediately remove Seller's
remaining industrial equipment upon thirty (30) days written notice.
9. Deliveries to Escrow Holder.
9.1. By Seller. Seller shall deliver or cause to be delivered to Escrow Holder on or
prior to the Closing Date the following items, the delivery of each of which shall be a condition to the
performance by Buyer of its obligations under this Agreement:
(a) Deed. For Parcel A: a statutory warranty deed, in form and substance
satisfactory to Buyer and its counsel, duly executed and acknowledged by Seller, conveying to Buyer
indefeasible good and marketable fee simple title to Parcel A, free and clear of all liens, encumbrances,
restrictions and easements, except only the Permitted Exceptions and the Conservation Futures
Restriction detailed below. For Parcel B: a quitclaim deed, in form and substance satisfactory to Buyer
and its counsel, duly executed and acknowledged by Seller, conveying to Buyer any and all interest
Seller has in Parcel B, free and clear of all liens, encumbrances, restrictions and easements, except only
the Permitted Exceptions and the Conservation Futures Restriction detailed below. The two deeds will
be referred to hereinafter collectively as the "Deeds."
(i) Conservation Futures Restriction. As part of the Purchase Price
will be paid with King County Conservation Futures funds, Seller shall include restrictive language in the
Deeds in accordance with Section 26 below.
(b) FIRPTA Affidavit. A certificate in form and substance acceptable to
Buyer and its counsel, duly executed by Seller, evidencing that Seller is exempt from the withholding
requirements of Section 1445 of the Internal Revenue Code.
(c) ALTA Affidavits. Any affidavits, certifications or instruments,
including any lien affidavits or mechanic's lien indemnifications, duly executed and acknowledged by
Seller, as reasonably may be required by the Title Company in order to issue the Title Policy.
Section 5.
(d) Title Insurance Policv. The Title Insurance Policy in conformance with
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(e) Certificates of Authoritv. Such certificates as are necessary or required
by Buyer or the Title Company to evidence the authority of Seller and its signatories to execute the
instruments to be executed by Seller in connection with this transaction, and evidence that the execution
of such instruments is the official act and deed of Seller.
or its agent.
(f) Excise Tax Affidavit. A real estate excise tax affidavit signed by Seller
9.2. By Buver. Buyer shall deliver or cause to be delivered to Escrow Holder on or
before the Closing Date the following items, the delivery of each of which shall be a condition to the
performance by Seller of its obligations under this Agreement:
(a) Purchase Price. Cash by federal funds, wire transfer or cashier's check
in the amount necessary to pay the Purchase Price and Buyer's share of closing costs and prorations, if
any.
10. Close of Escrow.
10.1. Time. The close of escrow (the "Closine shall occur no more than thirty (30)
business days following notice from Buyer that the investigation contingency in Section 7 has been
satisfied or waived (the "Closine Date at the offices of Escrow Holder. When the Title Company is in
a position to issue the Title Policy and all documents and funds have been deposited with Escrow Holder,
Escrow Holder shall immediately close escrow as provided for below. Subject to the Conditions
Precedent in Section 6 above, the failure of either Seller or Buyer to be in position to close by the
Closing Date shall constitute a default by such party. The Parties may agree to extend the Closing Date,
particularly if additional time is needed to satisfy one or more of the Conditions Precedent in Section 6
above.
10.2. Procedure. Escrow Holder shall close Escrow as follows:
(a) Obtain the release of the Property from any liens described in the
Commitment except the Permitted Exceptions;
(b) Pay applicable real estate transfer excise taxes and record the Deeds;
(c) Complete the prorations;
(d) Issue and deliver the Title Policy to Buyer as appropriate;
(e) Deliver any other documents deposited by Seller into Escrow to Buyer;
(f) Deliver any documents deposited by Buyer into Escrow to Seller;
(g) Deliver to Seller the Purchase Price less Seller's closing costs and
prorations, and less an additional Fifty Two Thousand Two Hundred and Fifty Dollars ($52,250.00) (the
"Forterra Donation which Seller, in its sole and absolute discretion, has chosen to donate to Forterra
NW to help further Forterra NW's nonprofit, conservation mission;
(h) Following delivery to Seller of the Purchase Price in accordance with
subsection (g) above, deliver to Forterra NW the Forterra Donation detailed in subsection (f); and
Page 9 of 27
(i) Forward to Buyer and Seller, in duplicate, a separate accounting of all
funds received and disbursed for each party and copies of all executed and recorded or filed documents
deposited into Escrow, with such recording and filing date endorsed thereon.
10.3. Incorporation of Escrow Instructions. This Agreement shall serve as escrow
instructions, and an executed copy of this Agreement shall be deposited by Buyer with Escrow Holder
following its execution. The parties may separately or mutually execute additional escrow instructions
provided that such additional escrow instructions shall not change the terms of this Agreement without
mutual written agreement of the parties.
10.4. Closing Costs and Prorations.
(a) Closing Costs. Buyer and Seller shall each pay their own attorneys'
fees. Seller shall pay the cost of recording the Deed, escrow fees, real estate transfer excise taxes, and
the title insurance premium charged by the Title Company for a standard owner's policy. If required by
Buyer, Buyer shall pay the additional premium charged by the Title Company for extended coverage and
the Endorsements and the cost of the survey.
(b) Prorations. Seller shall be responsible for paying real property taxes,
general assessments, utilities and operating expenses relating to the Property through the Closing Date.
The portion of any special assessments levied against the Property and attributable to the time period
prior to Closing shall be paid in full by Seller. All expenses of the Property, including but not limited to,
real property taxes, rents, utility charges, amounts payable under contracts, annual permits and other
expenses normal to ownership, use, operation and maintenance of the Property shall be prorated as of
12:01 a.m. on the Closing Date.
10.5. Possession. Possession of the Property shall be delivered to Buyer upon Closing.
10.6. Deliveries Outside of Escrow. If any of the following items exist, on the Closing
Date Seller shall deliver such items to Buyer outside of Escrow: all books and records of account,
contracts, leases and leasing correspondence, receipts for deposits, unpaid bills and other papers
pertaining to the Property, architectural and engineering plans, drawings and specifications for the
improvements to the Property, all "As- Built" plans and specifications, original operating permits and
certificates relating to use, occupancy or operation of the Property, all advertising materials, booklets,
keys and other items, if any, used in operation of the Property.
11. Brokeraee Commission. Buyer warrants to Seller that Buyer's sole contact with Seller
and with the Property regarding this transaction has been with Seller and has not involved any broker or
finder. Seller warrants to Buyer that John Speirs, Senior Vice President at KG Investment Management,
615 Second Avenue, Suite 550, Seattle, WA 98104, has been Seller's primary contact with Buyer and
with the Property regarding this transaction and that any fee or commission owed to Mr. Speirs related to
this transaction is solely the responsibility of Seller. Each party shall indemnify, defend and hold the
other party harmless from and against any loss, cost or expense, including, but not limited to, attorneys'
fees and court costs, resulting from any claim for a fee or commission by any broker or finder in
connection with the Property and this Agreement resulting from the indemnifying party's actions.
12. Casualtv or Condemnation.
12.1. If there is a condemnation of all or part of the Property initiated before Closing,
Seller shall promptly notify Buyer and Buyer shall have the option for ten (10) days following the date
such notice is received (a) to proceed with the Closing, in which event all condemnation proceeds already
Page 10 of 27
received by Seller by the Closing shall be paid to Buyer and the right to receive such proceeds not yet
received by Seller shall be assigned to Buyer at the Closing, or (b) to terminate this Agreement. Unless
this Agreement is terminated, Seller shall take no action with respect to any condemnation proceeding
without the prior written consent of Buyer.
12.2. Before Closing, the entire risk of loss or damage by casualty to the Property
however caused shall be borne and assumed by Seller.
13. Revresentations. Warranties and Covenants.
13.1. Seller's Revresentations. Warranties and Covenants. In addition to the
representations, warranties and covenants contained elsewhere in this Agreement, Seller as of the date of
this Agreement and as of the Closing Date makes the following representations, warranties and covenants
to the best of Seller's actual knowledge:
(a) Title.
(i) Parcel A. Seller is the sole owner of Parcel A. At Closing,
Buyer will acquire 1) the entire fee simple estate and right, title and interest in and to Parcel A, free and
clear of all recorded or unrecorded liens, encumbrances, covenants, restrictions, reservations, easements,
options, tenancies, leases, encroachments, claims or other matters affecting title or possession of the
Property, subject only to the Permitted Exceptions and the Conservation Futures Restriction noted above
in Section 9.1(a)(i).
(ii) Parcel B. Seller covenants to Buyer that, although Seller
recently learned that it does not have marketable title to Parcel B, Seller is the sole entity asserting
ownership of Parcel B, and following Closing Seller will assist Buyer in obtaining marketable title to
Parcel B by providing Seller any documentation and/or other non monetary assistance deemed necessary
by Buyer to obtain such title. At Closing, Buyer will acquire any and all of Seller's interest in Parcel B,
free and clear of all recorded or unrecorded liens, encumbrances, covenants, restrictions, reservations,
easements, options, tenancies, leases, encroachments, claims or other matters affecting title or possession
of the Property, subject only to the Permitted Exceptions and the Conservation Futures Restriction noted
above in Section 9.1(a)(i).
(b) Aereements to Transfer or Encumber. Seller has not committed nor
obligated itself in any manner whatsoever to sell, lease or encumber the Property or any interest therein
to any party other than Buyer.
(c) No Rents. There are no prepaid rents or rents owed on the Property.
(d) Bankruvtcv. etc. No bankruptcy, insolvency, rearrangement or similar
action involving Seller or the Property, whether voluntary or involuntary, is pending, threatened, by a
third party, or contemplated by Seller.
(e) Litigation. There are no pending or threatened judicial, municipal or
administrative proceedings with respect to Seller, this transaction or in any manner affecting the Property
or any portion thereof or in which Seller is or will be a party by reason of Seller's ownership of the
Property or any portion thereof.
Page 11 of 27
(f) Notices. Seller has not received any written notices from any insurance
companies, governmental agencies or from any other parties with respect to any violations or other
matters concerning the Property.
(g) Good Standing and Due Authoritv. Seller is a Washington limited
liability company duly organized, validly existing and in good standing in the state of Washington.
Seller has all requisite power and authority to execute and deliver this Agreement and to carry out its
obligation hereunder and the transactions contemplated hereby. This Agreement has been, and the
documents contemplated hereby will be, duly executed and delivered by Seller and constitute the Seller's
legal, valid and binding obligation enforceable against Seller in accordance with its terms. The
consummation by Seller of the sale of the Property is not in violation of or in conflict with nor does it
constitute a default under any term or provision of the bylaws Seller, or any of the terms of any
agreement or instrument to which Seller is or may be bound, or of any provision of any applicable law,
ordinance, rule or regulation of any governmental authority or of any provision of any applicable order,
judgment or decree of any court, arbitrator or governmental authority.
(h) Leases. Service Contracts or Other Contracts. No leases, service
contracts or other contracts are in place regarding or related to the Property.
(i) Mechanic's Liens. No labor, material or services have been furnished
in, on or about the Property or any part thereof as a result of which any mechanics', laborer's or
materialmen's liens or claims might arise.
0) Provide Further Information. From the date of this Agreement to the
Closing Date, Seller will notify Buyer of each material event of which Seller becomes aware and that, in
the exercise of Seller's reasonable. business judgment, adversely affects the Property or any part thereof
immediately upon receiving actual knowledge of the occurrence of such event.
13.2. Effect of Buver's Inspections. The effect of the representations and warranties
made by Seller in this Agreement shall not be diminished or deemed to be waived by any inspections,
tests or investigations made by Buyer or its agents.
13.3 Buver's Representation. Buyer represents and warrants that as of the date of this
Agreement and as of the Closing Date, Buyer is a Washington nonprofit corporation duly organized,
validly existing and in good standing in the state of Washington. Buyer has all requisite power and
authority to execute and deliver this Agreement and to carry out its obligation under this Agreement and
the transactions contemplated by this Agreement. This Agreement has been, and the documents
contemplated by this Agreement will be, duly executed and delivered by Buyer and constitute the
Buyer's legal, valid and binding obligation enforceable against Buyer in accordance with its terms. The
consummation by Buyer of the purchase of the Property is not in violation of or in conflict with nor does
it constitute a default under any term or provision of the bylaws of Buyer, or any of the terms of any
agreement or instrument to which Buyer is or may be bound, or of any provision of any applicable law,
ordinance, rule or regulation of any governmental authority or of any provision of any applicable order,
judgment or decree of any court, arbitrator or governmental authority. Buyer engages in the purchase of
real property in the normal course of Buyer's operations and is a sophisticated Buyer with the requisite
expertise to evaluate property that Buyer intends to acquire.
14. Environmental Compliance. In addition to and without limiting Sections 13 and 17,
Seller warrants, represents, covenants and agrees that to the best of Seller's actual knowledge:
Page 12 of 27
14.1. Hazardous Substances. Seller has not used, generated, manufactured, produced,
stored, released, discharged or disposed of on, under, above or about the Property (or off -site of the
Property that might affect the Property) or transported to or from the Property, any Hazardous Substance,
as defined below, or allowed any other person or entity to do so. Seller has no knowledge nor has Seller
observed any questionable practice or conduct indicating that any Hazardous Substance has been used,
generated, manufactured, produced, stored, released, discharged or disposed of on, under or above
Property (or off -site of the Property that might affect the Property) or transported to or from the Property
by any entity, firm or person, or from any source whatsoever.
14.2. Pre- closine Covenant. Seller will not use, generate, manufacture, produce, store,
release, discharge or dispose of on, under, above or about the Property (or off -site of the Property that
might affect the Property), or transport to or from the Property, any Hazardous Substance or authorize
any other person or entity to do so, prior to the closing.
14.3. Environmental Indemnity. Seller shall protect, indemnify, hold harmless and
defend Buyer and its directors, officers, contractors, employees, agents, parents, subsidiaries, successors
and assigns from and against any and all loss, damage, cost, expense or liability (including attorneys'
fees and costs) directly or indirectly arising out of or attributable to a breach of any representation,
warranty,. covenant or agreement contained in this Section including, without limitation, (a) all
consequential damages, and (b) the costs of any required or necessary repairs, cleanup or detoxification
of the Property and the preparation and implementation of any closure, remedial or other required plans.
This indemnity does not apply to actions of Buyer, its agents or independent contractors.
14.4. Definitions. The term "Hazardous Substance" includes without limitation
(a) those substances included within the definitions of "hazardous substances "hazardous materials
"toxic substances "hazardous wastes" or "solid waste" in any Environmental Law, as defined below;
(b) petroleum products and petroleum byproducts; (c) polychlorinated biphenyls; and (d) chlorinated
solvents. The term `Environmental Law" includes any federal, state, municipal or local law, statute,
ordinance, regulation, order or rule pertaining to health, industrial hygiene, environmental conditions or
hazardous substances.
15. Indemnification.
15.1. Seller's Indemnitv. Seller shall pay, protect, defend, indemnify and hold Buyer
and its successors and assigns harmless from and against any and all loss, liability, damage and expense
suffered or incurred by reason of (a) the breach of any representation, warranty or agreement of Seller set
forth in this Agreement, (b) the failure of Seller to perform any obligation required by this Agreement to
be performed by Seller, (c) the ownership, maintenance, and/or operation of the Property by Seller prior
to the Closing, not in conformance with this Agreement, or (d) any injuries to persons or property from
any cause occasioned in whole or in part by any acts or omissions of the Seller, its representatives,
employees, contractor or suppliers that occurred before Closing. Seller shall defend any claim covered
by this indemnity using counsel reasonably acceptable to Buyer.
15.2. Buver's Indemnitv. Buyer shall pay, protect, defend, indemnify and hold Seller
and its successors and assigns harmless from and against any and all loss, liability, damage and expense
suffered or incurred by reason of the ownership, maintenance, and/or operation of the Property after
Closing by Buyer.
The covenants, agreements, representations and warranties made in this Section shall survive the
Closing unimpaired and shall not merge into the Deed and the recordation thereof.
Page 13 of 27
16. Entire Agreement. This Agreement contains the entire integrated agreement of the
Parties, including all of the covenants and conditions between the Parties with respect to the subject
matter of this Agreement, and supersedes all prior correspondence, agreements and understandings, both
verbal and written. No addition or modification of any term or provision of this Agreement shall be
effective unless set forth in writing and signed by Seller and Buyer. The Parties do not intend to confer
any benefit under this Agreement to any person, firm or corporation other than the Parties and, if
applicable, an assignee hereunder.
17. Default: Remedies
17.1. Specific Performance. This Agreement pertains to the conveyance of real
property, the unique nature of which is hereby acknowledged by the Parties. Consequently, if Seller
breaches or defaults under this Agreement or any of the representations, warranties, terms, covenants,
conditions or provisions hereof, Buyer shall have, in addition to a claim for damages for such breach or
default, and in addition and without prejudice to any other right or remedy available under this
Agreement or at law or in equity, the right (a) to specific performance of this Agreement; or (b) to
terminate this Agreement upon written notice without liability to Buyer.
17.2. Attornevs' Fees. If either party brings an action or other proceeding against the
other party to enforce any of the terms, covenants or conditions hereof or any instrument executed
pursuant to this Agreement, or by reason of any breach or default hereunder or thereunder, the party
substantially prevailing in any such action or proceeding shall be paid all costs and reasonable attorneys'
fees by the other party, and in the event any judgment is obtained by the substantially prevailing party all
such costs and attorneys' fees shall be included in the judgment.
18. Notices. All written notices required to be given pursuant to the terms hereof shall be
either delivered personally or deposited in the United States mail, certified mail, return receipt requested,
postage prepaid and addressed to the addresses listed below with copies to the parties listed after such
address:
SELLER:
EJWJR TUKWILA YARD LLC
PO Box 3767
Seattle, WA 98124
Attn: Elmer James White, Jr.
with a copy to:
John Speirs
Senior Vice President
KG Investment Management
615 Second Avenue, Suite 550
Seattle, WA 98104
Page 14 of 27
BUYER:
Forterra NW
615 Second Avenue, Suite 600
Seattle, WA 98104
Attn: Adam Draper
The foregoing addresses may be changed by written notice to the other party as provided herein. Mailed
notice properly given shall be deemed received two (2) days after deposit in the mail. Facsimile
transmission of any signed original document or notice, and retransmission of any signed facsimile
transmission, shall be the same as delivery of an original. At the request of either party, or the Escrow
Holder, the parties will confirm facsimile transmitted signatures by signing an original document.
19. Partial Invaliditv. If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby; and each such term and
provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
20. Waivers. No waiver of any breach of any covenant or provision in this Agreement shall
be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision
in this Agreement. No extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or act.
21. Construction. Captions are solely for the convenience of the Parties and are not a part of
this Agreement. This Agreement shall not be construed as if it had been prepared by one of the parties,
but rather as if both parties had prepared it. If the date on which Buyer or Seller is required to take any
action under the terms of this Agreement is not a business day, the action shall be taken on the next
succeeding business day.
22. Time. Time is of the essence of every provision of this Agreement.
23. Force Maieure. Performance by Seller or Buyer of their obligations under this
Agreement shall be extended by the period of delay caused by force majeure. Force majeure is war,
natural catastrophe, strikes, walkouts or other labor industrial disturbance, order of any government,
court or regulatory body having jurisdiction, shortages, blockade, embargo, riot, civil disorder, or any
similar cause beyond the reasonable control of the party who is obligated to render performance (but
excluding financial inability to perform, however caused).
24. Successors. The terms, conditions and covenants contained in this Agreement shall be
binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto.
25. Annlicable Law. This Agreement shall be governed by the law of the State of
Washington. Venue for disputes under this Agreement shall be in King County.
26. Kine Countv Conservation Futures Restriction. Seller shall include in the Deeds
submitted to escrow the following specific restrictive language in accordance with the purposes of King
County's Conservation Futures funding program: The property herein conveyed is subject to open space
use restrictions and restrictions on alienation as specified in RCW §84.34.200, et seq., King County
Code §2612.005, et seq. and King County Ordinance No. 14714.
Page 15 of 27
27. Counternarts. This Agreement may be executed in one or more counterparts, any one
of which shall be deemed an original.
All Exhibits referenced herein and/or attached hereto are hereby incorporated into this Agreement.
(The remainder of this page intentionally left blank.)
Page 16 of 27
Made and entered into on this date
SELLER:
EJWJR TUKWILA YARD LLC,
a Washingto 1' ed liability compan
w
By:
Name: ��tMt�a �i�rhts wvI �G,
Title: V
BUYER:
FORTERRA NW,
a Washington nonprofit corporation
By: CY
Name: Q 44 Ctc-a� SO
Title: 94qol CCO
Page 17 of 27
Exhibit A
LEGAL DESCRIPTION
Parcel A: King Countv Tax ID#: 102304 -9085 1.75 ac
ALL THAT PORTION OF LOT B, KING COUNTY LOT LINE ADJUSTMENT, FILE NUMBER
985024, FOUND UNDER KING COUNTY RECORDERS FILE NUMBER 8510170346, KING
COUNTY, WASHINGTON, BEING A PORTION GOVERNMENT LOT 1, SECTION 10, TOWNSHIP
23 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTH RIGHT -OF -WAY OF SOUTH 115TH
STREET, ALSO KNOWN AS U.S. MACADAM ROAD NO. 622, SURVEY 434, OR ALSO KNOWN
AS THE BILL GOLDSMITH ROAD WITH A LINE 53.00 FEET EAST OF THE CENTERLINE OF THE
SEATTLE TACOMA INTERURBAN RAILROAD, ALSO KNOWN AS THE PUGET SOUND POWER
AND LIGHT COMPANY RIGHT -OF -WAY, NOW KNOWN AS THE SEATTLE CITY LIGHT RIGHT
OF -WAY;
THENCE NORTH 03 33'29" WEST PARALLEL, WITH THE CENTERLINE OF SAID SEATTLE
CITY LIGHT RIGHT -OF -WAY 81.28 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUE NORTH 03 33'29" WEST PARALLEL WITH SAID CENTERLINE 105.61
FEET;
THENCE CONTINUE NORTHEASTERLY PARALLEL WITH SAID CENTERLIBE ALONG THE
ARC OF A 2,917.79 FOOT RADIUS CURVE TO THE LEFT 388.67 FEET THROUGH A CENTRAL
ANGLE OF 07 37'56" TO THE SOUTH RIGHT -OF -WAY OF THE CITY OF SEATTLE (WATER)
TRANSMISSION LINE OBTAINED VIA SEATTLE ORDINANCE 828986. CONDEMNED IN KING
COUNTY SUPERIOR COURT, CAUSE NO. 469557;
THENCE NORTH 87 18' 08" EAST ALONG SAID SOUTH RIGHT -OF -WAY OF THE CITY OF
SEATLLE TRANSMISSION LINE 210.00 FEET;
THENCE SOUTH 02 41' 52" EAST PERPENDICULAR TO SAID SOUTH RIGH -OF -WAY OF THE
CITY OF SEATLLE TRANSMISSION LINE 170.00 FEET;
THENCE SOUTH 41 29' 55" WEST 83.69 FEET;
THENCE AGAIN SOUTH 02 41' 52" EAST PERPENDICULAR TO SAID SOUTH RIGHT -OF -WAY
OF THE CITY OF SEATTLE TRANSMISSION LINE 282.09 FEET TO A POINT 80.00 FEET NORTH
OF THE NORTH RIGHT -OF -WAY OF SAID SOUTH 115TH STREET;
THENCE NORTH 83 23'3 1" WEST PARALLEL WITH AND 80.00 FEET NORTH OF THE NORTH
RIGHT -OF -WAY OF SAID SOUTH 115TH STREET 119.69 FEET TO THE TRUE POINT OF
BEGINNING.
TOGETHER WITH THE FOLLOWING DESCRIBED INGRESS, EGREE, AND UTILITY EASEMENT:
ALL THAT PORTION OF LOT B, KING COUNTY LOT LINE ADJUSTMENT, FILE NUMBER
985024, FOUND UNDER KING COUNTY RECORDERS FILE NO. 8510170346, KING COUNTY,
Page 18 of 27
WASHINGTON, BEING A PORTION GOVERNMENT LOT 1, SECTION 10, TOWNSHIP 23 NORTH,
RANGE 4 EAST, WILLAMETTE MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTH RIGHT -OF -WAY OF SOUTH 115TH
STREET, ALSO KNOWN AS U.S. MACADAM ROAD NO. 622, SURVEY 434, OR ALSO KNOWN
AS THE BILL GOLDSMITH ROAD WITH A LINE 53.00 FEET EAST OF THE CENTERLINE OF THE
SEATTLE TACOMA INTERURBAN RIGHT -OF -WAY, ALSO KNOWN AS THE PUGET SOUND
POWER AND LIGHT COMPANY RIGHT -OF -WAY, NOW KNOWN AS THE SEATTLE CITY LIGHT
RIGHT -OF -WAY;
THENCE SOUTH 83 23'3 1" EAST ALONG THE NORTH RIGHT -OF -WAY OF SAID SOUTH 115TH
STREET 46.00 FEET TO THE TRUE POINT OF BEGINNING.
THENCE CONTINUE SOUTH 83 23'3 1 EAST ALONG THE NORTH RIGHT -OF -WAY OF SAID
SOUTH 115TH STREET 40.00 FEET;
THENCE NORTH 20 24' 24" EAST 82.38 FEET TO A POINT 80.00 FEET NORTH OF THE NORTH
RIGHT -OF -WAY OF SAID SOUTH 115TH STREET;
THENCE NORTH 83 23'3 1 "WEST PARALLEL WITH AND 90.00 FEET NORTH OF THE NORTH
RIGHT -OF -WAY OF SAID SOUTH 115TH STREET 40.00 FEET;
THENCE SOUTH 20 24'24" WEST 82.38 FEET TO THE TRUE POINT OF BEGINNING.
Parcel B: King County Tax ID#: 102304 -9002 0.15 ac
THAT PROPERTY IDENTIFIED BY KING COUNTY ASSESSOR'S OFFICE PARCEL NUMBER
1023049002, WITH AN ABBREVIATED LEGAL DESCRIPTION ON FILE WITH SUCH OFFICE OF:
POR GL 1 LY ELY OF E MARGINAL WAY SWLY OF A LN DAF -BEG ON N LN OF GL 1 WCH IS
339.9 FT E OF NW COR OF SEC TH S 33 -15 -00 E 762.47 FT TH S 84 -30 -00 E 237.6 FT TH S 33 -15 -00
E TO NLY LN OF DUWAMISH RIVER TERMINUS SD LN LESS P S P L R/W LESS CO RD
LESS THAT POR LY WLY IN FOLG DESC BEG NXN N MGN S 115TH ST WLY MGN CITY OF
SEATTLE P/L R/W; TH NLY ALG SD WLY MGN 100 FT; TH WLY PLW SD N MGN 100 FT; TH
SLY PLW SD WLY MGN 100 FT TO N MGN S 115TH ST TH ELY ALG SD MGN 100 FT TO BEG
ALL SITUATE in the County of King, State of Washington
Page 19 of 27
Exhibit B
PROPERTY DEPICTION
03234
0323049044
vicivgy0j/ 0323049437
0323044167 1
93230490'14 932304916$
0�
1923049056
1923449059
192304907,1
9323049060
03230 ,19099
9323949138
0323044965
iO49Uti
Tukwila
.jJ239490SL,' ,1023144937
S_ii57F
�"`ad123449053
33Si40a�%0'
Dtjwami Rivet
02"44 YAR
1923049012 1 9234 4 907s
,1923449043
1023044014
JC) 2MB King Cm aly
r
,1023444043 1
0733091 224
f 0733001200
0733404725
9Y330042i9 1 Y3435600a13�
mar± RheiF 51tt Ttiicw7Jf� 1 9330441 ±4 734460.0221 g3g06001831
t 0733490203 973344JY80 1340600160
1923449 1 {1 1
733000005 '3400020'
I
T S 1167STV Y34� 7349600182 �ji
S 0733000123
973090156 jug
c 0733040 ?35
3
47330040,10 1 0733040179
4733004133 740600222'73406004811
0733440029 °•0�'33000a30 j"
73446002241349600aBd
`07334n0131 33000469 l
033009021 r;: (Or 264$' ,196002
Page 20 of 27
Exhibit C
PERMITTED EXCEPTIONS
Page 21 of 27
Exhibit D
SELLER'S DISCLOSURE DOCUMENTATION
Under Revised Code of Washington 64.06.015, in a transaction for the sale of unimproved
residential real property, the seller shall, unless the buyer has expressly waived the right to
receive the disclosure statement under RCW 64.06.010, or unless the transfer is otherwise
exempt under RCW 64.06.010, deliver to the buyer a completed seller disclosure statement in the
following format and that contains, at a minimum, the following information:
INSTRUCTIONS TO THE SELLER
Please complete the following form. Do not leave any spaces blank. If the question clearly does
not apply to the property write "NA." If the answer is "yes" to any items, please explain on
attached sheets. Please refer to the line number(s) of the question(s) when you provide your
explanation(s). For your protection you must date and sign each page of this disclosure statement
and each attachment. Delivery of the disclosure statement must occur not later than five business
days, unless otherwise agreed, after mutual acceptance of a written contract to purchase between
a buyer and a seller.
6
r�
"Y
tT
X
Page 22 of 27
NOTICE TO THE BUYER
THE FOLLOWING DISCLOSURES ARE MADE BY SELLER ABOUT THE CONDITION OF THE
UNDEVELOPED REAL PROPERTY LOCATED AT XXX ECKENSTAM- JOHNSON RD. ON ANDERSON
ISLAND IN PIERCE COUNTY, WASHINGTON, CONSISTING OF APPROXIMATELY EIGHTY (80) ACRES
"THE PROPERTY OR AS LEGALLY DESCRIBED ON ATTACHED EXHIBIT A.
SELLER MAKES THE FOLLOWING DISCLOSURES OF EXISTING MATERIAL FACTS OR MATERIAL
DEFECTS TO BUYER BASED ON SELLER'S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME
SELLER COMPLETES THIS DISCLOSURE STATEMENT. UNLESS YOU AND SELLER OTHERWISE
AGREE IN WRITING, YOU HAVE THREE BUSINESS DAYS FROM THE DAY SELLER OR SELLER'S
AGENT DELIVERS THIS DISCLOSURE STATEMENT TO YOU TO RESCIND THE AGREEMENT BY
DELIVERING A SEPARATELY SIGNED WRITTEN STATEMENT OF RESCISSION TO SELLER OR
SELLER'S AGENT. IF THE SELLER DOES NOT GIVE YOU A COMPLETED DISCLOSURE STATEMENT,
THEN YOU MAY WAIVE THE RIGHT TO RESCIND PRIOR TO OR AFTER THE TIME YOU ENTER INTO
A SALE AGREEMENT.
THE FOLLOWING ARE DISCLOSURES MADE BY SELLER AND ARE NOT THE REPRESENTATIONS OF
ANY REAL ESTATE LICENSEE OR OTHER PARTY. THIS INFORMATION IS FOR DISCLOSURE ONLY
AND IS NOT INTENDED TO BE A PART OF ANY WRITTEN AGREEMENT BETWEEN BUYER AND
SELLER.
FOR A MORE COMPREHENSIVE EXAMINATION OF THE SPECIFIC CONDITION OF THIS PROPERTY
YOU ARE ADVISED TO OBTAIN AND PAY FOR THE SERVICES OF QUALIFIED EXPERTS TO INSPECT
THE PROPERTY, WHICH MAY INCLUDE, WITHOUT LIMITATION, ARCHITECTS, ENGINEERS, LAND
SURVEYORS, PLUMBERS, ELECTRICIANS, ROOFERS, BUILDING INSPECTORS, ON -SITE
WASTEWATER TREATMENT INSPECTORS, OR STRUCTURAL PEST INSPECTORS. THE PROSPECTIVE
BUYER AND SELLER MAY WISH TO OBTAIN PROFESSIONAL ADVICE OR INSPECTIONS OF THE
PROPERTY OR TO PROVIDE APPROPRIATE PROVISIONS IN A CONTRACT BETWEEN THEM WITH
RESPECT TO ANY ADVICE, INSPECTION, DEFECTS OR WARRANTIES.
Seller is/ is not occupying the property.
I. SELLER'S DISCLOSURES:
*If you answer "Yes" to a question with an asterisk please explain your answer and attach documents, if
available and not otherwise publicly recorded. If necessary, use an attached sheet.
1. TITLE
J$ Yes No Don't know A. Do you have legal authority to sell the property? If no, please explain.
Yes No Don't know *B. Is title to the property subject to any of the following?
(1) First right of refusal
(2) Option
(3) Lease or rental agreement
(4) Life estate?
Yes No Don't know *C. Are there any encroachments, boundary agreements, or boundary disputes?
M Yes No Don't know *D. Is there a private road or easement agreement for access to the property?
Yes No Don't know *E. Are there any rights -of -way, easements, or access limitations that affect the
Buyer's use of the property?
Yes i No Don't know *F. Are there any written agreements for joint maintenance of an easement or
right -of -way?
[]Yes w No Don't know *G. Is there any study, survey project, or notice that would adversely affect the
property?
[]Yes p No Don't know *H. Are there any pending or existing assessments against the property?
[]Yes n No Don't know *I. Are there any zoning violations, nonconforming uses, or any unusual
restrictions on the property that affect future construction or remodeling?
M Yes No Don't know *J. Is there a boundary survey for the property?
Yes IN No Don't know *K. Are there any covenants, conditions, or restrictions recorded against title to
the property?
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2. WATER
A. Household Water
Yes S No Don't know (1) Does the property have potable water supply?
(2) If yes, the source of water for the property is:
Private or publicly owned water system
Private well serving only the property
Other water system
Yes No Don't knowA*If shared, are there any written agreements?
Yes No Don't know *(3) Is there an easement (recorded or unrecorded) for accesq;to and/or
maintenance of the water source?
Yes No Don't know *(4) Are there any problems or repairs needed?
Yes No Don't know (5) Is there a connection or hook -up charge payable before the proper can be
connected to the water main?
Yes 0 No Don't know (6) Have you obtained a certificate of water availability from the water purveyor
serving the property? (If yes, please attach a copy.),
Yes M No Don't know (7) Is there a water right permit, certificate, or claim associated with household
water supply for the property? (If yes, please attach a copy.)
Yes No J Don't know (a) If yes, has the water right permit, certificate, or claim been assigned,
transferred, or changed?
*(b) If yes, has all or any portion of the water right not been used for
five or more successive years?
[]Yes No Don't know NA (c) If no or don't know, is the water withdrawn from the water source
less than 5,000 gallons a day?
Yes No Don't know *(8) Are there any defects in the operation of the water system (e.g., pipes, tank;
pump, etc.)?
B. Irrigation Water
Yes No a Don't know (1) Are there any irrigation water rights for the property, such as a water right
permit, certificate, or claim? (If yes, please attach a copy.)
[]Yes No Don't know (a) If yes, has all or any portion of the water right not been used for five
or more successive years?
[]Yes No Don't know (b) If yes, has the water right permit, certificate, or claim been assign,
transferred, or changed? 1
Yes M No Don't know *(2) Does the property receive irrigation Water from a ditch company,'.rrigation
district, or other entity? If so, please identify the entity that supplies irrigation water to the property:
N
C. Outdoor Sprinkler System
Yes a No Don't know (1) Is there an outdoor sprinkler system for the property? ,i,;;
Yes []No Don't know *(2) If yes, are there any defects in the system?
Yes No Don't know *(3) If yes, is the sprinkler system connected to irrigation water?
3. SEWER/SEPTIC SYSTEM
�r
A. The property is served by:
Public sewer system
On -site sewage system (including pipes, tanks, drainfields, and all other component parts).
Other disposal system, please describe:
Yes No Don't know B. Is the property subject to any sewage system fees or charges in addition to
those covered in your regularly billed sewer or on -site sewage system maintenance service? o f;.
C. If the property is connected to an on -site sewage system:
[]Yes No Don't know *(1) Was a permit issued for its construction?
[]Yes No Don't know *(2) Was it approved by the local health department or district following its
construction?
[]Yes No Don't know (3) Is the septic system a pressurized system?
[]Yes No Don't know (4) Is the septic system a gravity system?
[]Yes No Don't know *(5) Have there been any changes or repairs to the on -site sewage system?
Page 24 of 27
Yes No Don't know (6) Is the on -site sewage system, including the drainfield, located entirely within
the boundaries of the property? If no, please explain:
Yes No Don't know *(7) Does the on -site sewage system require monitoring and maintenance
services more frequently than once a year?
4. ELECTRICAL/GAS
Yes
No
Don't know
A. Is the property served by natural gas?::
Yes
No
Don't know
B. Is there a connection charge for gas?
Yes
y No
Don't know
C. Is the property served by electricity?
Yes
No
Don't know
D. Is there a connection charge for electricity?
Yes
No
Don't know
*E. Are there any electrical problems on the property?
5. FLOODING E`
Yes No Don't know A. Is the property located in a government designated flood zone or floodplain?
6. SOIL STABILITY
Yes a No Don't know *A. Are there any settlement, earth movement, slides, or similar soil problems on
the property?
7. ENVIRONMENTAL
Yes r No Don't know *A. Have there been any flooding, standing water, or drainage problems on the
property that affect the property or access to the property?
Yes No Don't know *B. Does any part of the property contain fill'dirt, waste, or other fill material?
Yes No Don't know *C. Is there any material damage to the property from fire, wind, floods, beach
movements, earthquake, expansive soils, or landslides?
0 Yes No Don't know D. Are there any shorelines, wetlands, floodplains, or critical areas on the
property? s
Yes IR No Don't know *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?
a Yes No Don't know *F. Has the property been used for commercial or industrial purposes?
Yes No Don't know *G. Is there any soil or groundwater contamination?
Yes 0 No Don't know *H. Are there transmission poles or other electrical utility equipment i.4stalled,
maintained, or buried on the property that do not provide utility service to the structures on the property?
Yes No Don't know *I. Has the property been used as a legal or illegal dumping site?
Yes N No Don't know *J. Has the property been used as an illegal drug manufacturing site?
Yes No Don't know *K. Are there any radio towers that cause interference with cellular telkphone
reception?
8. HOMEOWNERS' ASSOCIATION /COMMON INTERESTS
Yes M No Don't know A. Is there a homeowners' association? Name of association and contact
information for an officer, director, employee, or other authorized agent, if any, who may provide the association's
financial statements, minutes, bylaws, fining policy, and other information that is not publicly available:
Yes No Don't know B. Are there regular periodic assessments:
per Month Year
Other
Yes r No Don't know *C. Are there any pending special assessments?
Yes No Don't know *D. Are there any shared "common areas" or any joint maintenance agreements
(facilities such as walls, fences, landscaping, pools, tennis courts, walkways, or other areas co -owned in undivided
interest with others)?
9. OTHER FACTS
Yes M No Don't know *A. Are there any disagreements, disputes, encroachments, or legal actions
concerning the property?
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Yes Q No Don't know *B. Does the property have any plants or wildlife that are designated as species
of concern, or listed as threatened or endangered by the government?
Yes No Don't know *C. Is the property classified or designated as forest land or open space?
Yes No Don't know D. Do you have a forest management plan? If yes, attach.
Yes No Don't know *E. Have any development related permit applications been submitted to any
government agencies?
If the answer to E is "yes," what is the status or outcome of those applications?
O Yes []No Don't know F. Is the property located within a city, county, or district or within a department
of natural resources fire protection zone that provides fire protection services?
10. FULL DISCLOSURE BY SELLERS
A. Other conditions or defects:
Yes No Don't know *Are there any other existing material defects affecting the property that a
prospective buyer should know about?
B. Verification:
The foregoing answers and attached explanations (if any) are complete and correct to the best of my /our
knowledge and I/we have received a copy hereof. I/we authorize all of my /our real estate licensees, if any, to deliver
a copy of this disclosure statement to other real estate licensees and all prospective buyers of the property.
DATE 11012
SELLER E JWJ R TUICWILA 7 412 D L46
SELLER
NOTICE TO BUYER
INFORMATION REGARDING REGISTERED SEX OFFENDERS MAY BE OBTAINED FROM LOCAL LAW
ENFORCEMENT AGENCIES. THIS NOTICE IS INTENDED ONLY TO INFORM YOU OF WHERE TO
OBTAIN THIS INFORMATION AND IS NOT AN INDICATION OF THE PRESENCE OF REGISTERED SEX
OFFENDERS.
H. BUYER'S ACKNOWLEDGMENT
A. Buyer hereby acknowledges that: Buyer has a duty to pay diligent attention to any material defects
that are known to Buyer or can be known to Buyer by utilizing diligent attention and observation.
B. The disclosures set forth in this statement and in any amendments to this statement are made only
by the Seller and not by any real estate licensee or other party.
C. Buyer acknowledges that, pursuant to RCW 64.06.050(2), real estate licensees are not liable for
inaccurate information provided by Seller, except to the extent that real estate licensees know of such inaccurate
information.
D. This information is for disclosure only and is not intended to be a part of the written agreement
between the Buyer and Seller.
E. Buyer (which term includes all persons signing the "Buyer's acceptance" portion of this disclosure
statement below) has received a copy of this Disclosure Statement (including attachments, if any) bearing Seller's
signature.
DISCLOSURES CONTAINED IN THIS DISCLOSURE STATEMENT ARE PROVIDED BY SELLER BASED
ON SELLER'S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME SELLER COMPLETES THIS
DISCLOSURE STATEMENT. UNLESS BUYER AND SELLER OTHERWISE AGREE IN WRITING, BUYER
SHALL HAVE THREE BUSINESS DAYS FROM THE DAY SELLER OR SELLER'S AGENT DELIVERS THIS
DISCLOSURE STATEMENT TO RESCIND THE AGREEMENT BY DELIVERING A SEPARATELY SIGNED
WRITTEN STATEMENT OF RESCISSION TO SELLER OR SELLER'S AGENT. YOU MAY WAIVE THE
RIGHT TO RESCIND PRIOR TO OR AFTER THE TIME YOU ENTER INTO A SALE AGREEMENT.
Page 26 of 27
k
BUYER HEREBY ACKNOWLEDGES RECEIPT OF A COPY OF THIS DISCLOSURE STATEMENT AND
ACKNOWLEDGES THAT THE DISCLOSURES MADE HEREIN ARE THOSE OF THE SELLER OILY, AND
NOT OF ANY REAL ESTATE LICENSEE OR OTHER PARTY.
DATE, 1 w2_ V3 LO
BUYER
BUYER
The seller disclosure statement shall be for disclosure only, and shall not be considered part of any written agreement
between the buyer and seller of residential property. The seller disclosure statement shall be only a disclosure made
by the seller, and not any real estate licensee involved in the transaction, and shall not be construed as a warranty of
any kind by the seller or any real estate licensee involved in the transaction.
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