HomeMy WebLinkAbout4030 Resolution - Auto Zone PSA for Future Pasco Fire StationRESOLUTION NO. 4030
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE PURCHASE OF 2.1 ACRES IN THE NE SECTION
OF THE CITY FOR LOCATION OF FUTURE FIRE STATION NO. 87.
WHEREAS, through inquiry and negotiation, AutoZone Parts, Inc. authorized the sale of
2.1 acres on the NW corner of their property located at 3733 North Capitol Avenue, listing the
purchase price as $255,000; and
WHEREAS, through discussion of mutual goals of both the Pasco Fire Department and
the City of Pasco to seek and strategically purchase fee -simple land for future locations of fire
stations, and
WHEREAS, the City has reviewed the Purchase and Sale Agreement and all associated
exhibits attached thereto, and
WHEREAS, the City has appropriated funding for purchase in the amount of the listing
puce.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That the attached Purchase and Sale agreement is satisfactory to the goals and budget for
the City of Pasco and the purchase of the subject property is advantageous to the City, and
Be It Further Resolved that the City Manager is hereby authorized to execute the Purchase
and Sale agreement attached hereto as Exhibit "A."
PASSED by the City Council of the City of Pasco this 19th day of January, 2021.
Saul Martinez
Mayor
ATTEST: APPROV S TO FORM:
Debra Barham, CMC Fer v PLLC
City Clerk City Attorney
Resolution - Purchase Sale Agreement — Property for Fire Station 87
EXHIBIT A
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
8s
ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY 8s
ESCROW INSTRUCTIONS ("Agreement"), dated as of , 2021 is entered into
by and between AutoZone Parts, Inc., a Nevada corporation ("Seller") and The City
of Pasco, Washington, a Municipal Corporation ("Buyer"), with reference to the
following:
RECITALS
A. WHEREAS, Seller is the owner of a fee estate in that certain real property located
in Pasco, Washington, consisting of approximately 2.125 acres of land together with all
rights and easements appurtenant thereto, as shown on Exhibit A ("Property") and is a
portion of the entire property owned by Seller and described on Exhibit B attached
hereto and made a part hereof; and
B. WHEREAS, Seller desires to sell and Buyer desires to purchase the Property.
NOW, THEREFORE, with reference to the foregoing Recitals which are
incorporated herein by this reference, and for other valuable consideration the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
TERMS, CONDITIONS AND CONTINGENCIES OF PURCHASE AND SALE:
1. PURCHASE PRICE. Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property for a
purchase price of Two Hundred Fifty -Five Thousand and 00/ 100 Dollars ($255,000.00)
("Purchase Price") payable in cash at the Closing (as defined below). Buyer acknowledges
that Buyer, by Closing, will have inspected and examined all factors concerning the
Property and hereby affirms the Purchase Price has been adjusted to reflect an "AS IS"
condition of the Property. Upon the Closing, Buyer shall conclusively be deemed to have
released Seller from all responsibility relating to the Property, and to have accepted the
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Property in its condition "AS IS", without warranty or representation express or implied,
except as expressly set forth herein.
1.1 TRANSFER OF TITLE. The Property is to be conveyed by statutory
warranty deed ("Deed"). The Deed shall be subject to easements, conditions and
restrictions of record that lawfully affect the Property and subject to those matters that
would be shown on a current, accurate survey of the Property or by an inspection
thereof. In addition, the Deed shall be subject to the restrictions and "as -is" language
contained in the Agreement. The Deed shall contain an area for Buyer to acknowledge
its understanding and agreement regarding the restrictions and "as -is" language and
Buyer shall sign this acknowledgement at Closing. The legal description to be used in
the Deed transferring the Property to Buyer shall be the metes and bounds legal
description shown on Buyer's survey of the property (see Article 1.2 below), provided
said legal description is first approved in writing by Seller. Seller may convey the
Property to another entity that will execute the Deed.
1.2 SURVEY AND OTHER MATTERS CONCERNING THE STATUS OF THE
A. Buyer shall, at Buyer's cost, obtain a survey and provide a copy of same
to Seller on or before closing. Said survey shall include a legal description that will be
attached to the Deed. Said survey shall include:
1. A metes and bounds legal description of the Property.
2. A metes and bounds legal description of Seller's Remaining Property as
shown on Exhibit A( "Seller's Remaining Property");
3. Any utilities running over, through or under the Property.
4. All utilities (whether above or below ground) servicing Seller's
Remaining Property (whether running through the Property, through
Seller's Remaining Property, or otherwise), including but not limited to
electricity, water, sanitary sewer, and storm sewer.
5. Any and all easements shown on the Title Commitment whether on the
Property or on Seller's Remaining Property.
6. All other physical items located on the Property, including, but not
limited to, storm water drainage pipe facilities, utility poles and lines,
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retention/ detention ponds and any other facilities located on the
Property; and
7. Contour lines at one foot (1 I intervals and any other physical features
of the Property.
8. Certification from the engineer or surveyor as to whether a formal
subdivision is required; if required include a list of the requirements
and typical time frames for completing said formal subdivision.
9. Utilizing a 24" x 36" format, the survey must be drawn at a scale of
one -inch equals 20 feet. Use two sheets & match lines, if necessary.
The survey must be certified to Seller and to First American Title
Insurance Company.
B. IF, TO COMPLETE EITHER THE TRANSFER OR DEVELOPMENT OF
THE PROPERTY FOR BUYER'S USE, IT IS NECESSARY TO SUBDIVIDE, PLAT, RE -
PLAT OR OBTAIN A "LOT SPLIT" OF THE PROPERTY INTO A SEPARATE LOT,
BUYER SHALL, AT BUYER'S COST, BE RESPONSIBLE FOR SUCH SUBDIVISON,
PLAT, RE -PLAT, AND/OR LOT SPLIT IN ACCORDANCE WITH THE REQUIREMENTS
OF ALL APPROPRIATE GOVERNMENTAL AUTHORITIES. BUYER AND NOT SELLER,
SHALL BE RESPONSIBLE FOR ATTENDING ALL MEETINGS WITH GOVERNMENTAL
AUTHORITIES OR HAVING APPROPRIATE REPRESENTATION AT SUCH
MEETINGS. SAID SUBDIVISION, PLAT, RE -PLAT OR LOT SPLIT SHALL BE
SUBJECT TO THE PRIOR WRITTEN APPROVAL OF SELLER. SELLER AGREES TO
JOIN IN THE EXECUTION OF ANY DOCUMENT(S) REQUIRED BY SUCH
GOVERNMENTAL AUTHORITY, PROVIDED THAT SELLER HAS FIRST HAD THE
OPPORTUNITY TO REVIEW AND APPROVE SAID DOCUMENTS.
BUYER SHALL USE ITS BEST EFFORTS TO EXPEDITE THE RE-
SUBDIVISION PROCESS, SO THAT THE RE -SUBDIVISION SHALL BE
ACCOMPLISHED AS SOON AS POSSIBLE. AT LEAST ONCE DURING EVERY THIRTY
(30) DAY PERIOD, BUYER SHALL ADVISE SELLER, IN WRITING, AS TO THE
PROGRESS OF THE RE -SUBDIVISION PROCESS, THE ANTICIPATED DATE THAT
THE RE -SUBDIVISION SHALL RECEIVE FINAL APPROVAL FROM THE
GOVERNMENTAL AUTHORITY HAVING JURISDICTION AND THE ANTICIPATED
CLOSING DATE.
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2. DEPOSIT OF EARNEST MONEY, OPENING OF ESCROW AND CLOSING.
Within five (5) business days after the execution of this Agreement by Buyer and Seller,
Buyer shall deposit with First American Title Insurance Company ( "Escrow Holder"),
together with an executed, original of the Agreement and an earnest money deposit in
the form of a Cashier's Check in the amount of Five Thousand and 00/ 100 Dollars
($5,000.00) ("Escrow Deposit"), made payable to Escrow Holder, in order to open an
escrow ("Escrow") to complete the purchase and sale herein contemplated. Such Escrow
Deposit shall be applied to the Purchase Price at the Closing. By such deposit, Escrow
Holder is hereby authorized and instructed to act in accordance with the provisions of
this Agreement which shall constitute Escrow Holder's escrow instructions.
Escrow shall be deemed to have been opened on the date that a fully executed
original of this Agreement and the Escrow Deposit are received by Escrow Holder
("Opening of Escrow") and, upon receipt thereof, Escrow Holder shall advise Buyer and
Seller of said date. In addition, Buyer and Seller agree to execute, deliver and be bound
by other documents that may be reasonably required by Escrow Holder in order to
consummate the transaction contemplated herein, provided both Seller and Buyer have
had an opportunity to review, negotiate and approve said documents and said
documents do not alter or change the terms of the Agreement.
As a material part of the consideration for Seller's execution of this Agreement,
Buyer hereby agrees that Escrow shall close within fifteen (15) business days after all
contingencies set forth in this Agreement have been satisfied but in no event later than
ninety (90) calendar days. ("Closing").
3. TERMINATION OF AGREEMENT AND CANCELLATION OF ESCROW. If either
Buyer or Seller (a) disapproves any condition referred to in this Agreement within the
applicable time period and in the manner set forth in this Agreement, or (b) is otherwise
allowed to terminate this Agreement and cancel the Escrow, without thereby committing
an act of default under this Agreement or the Escrow, and does so, then all obligations
of the parties under this Agreement shall terminate and neither party shall have any
further obligation to the other under this Agreement (except, that Buyer's indemnity of
Seller and other obligations to Seller, as set forth herein below in the Article titled
"CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE", shall continue in full force
and effect). In such event, Escrow Holder shall return all funds (after deducting its
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charges to the extent payable by Buyer) and documents, then in Escrow, to the party
that deposited the documents with Escrow Holder. If Escrow fails to Close due to a
breach of this Agreement by Seller, Seller agrees to promptly direct Escrow Holder to
return the Escrow Deposit to Buyer. If Escrow fails to Close due to a breach of this
Agreement by Buyer, Escrow Holder is hereby instructed to release the Escrow Deposit
to Seller as provided herein below.
3.1 LIQUIDATED DAMAGES. Buyer and Seller agree that if Buyer fails to
perform the obligations and responsibilities as and when required by this Agreement,
such failure shall constitute a material default by Buyer and shall vest in Seller the right
to terminate this Agreement and the Escrow by giving written notice of termination to
Buyer and Escrow Holder. In the event of such termination, Buyer and Seller agree that
the actual damages which Seller would suffer as a result of Buyer's default are extremely
difficult and impractical to ascertain inasmuch as it is difficult to evaluate the damages
to be incurred by Seller taking the Property off the market pursuant to this Agreement.
Therefore, Buyer and Seller agree that Buyer's Escrow Deposit represents a reasonable
estimate as to the amount of such damages and Seller shall be entitled to receive and
retain the Escrow Deposit as liquidated damages which shall be in lieu of specific
performance and all other damages or remedies that otherwise would be available to
Seller, if Buyer fails to Close on account of Buyer's breach of this Agreement.
Seller and Buyer further agree that if Seller fails to perform the obligations and
responsibilities as and when required by this Agreement, such failure shall constitute a
default by Seller and shall vest in Buyer the right to terminate this Agreement and the
Escrow by giving written notice of termination to Seller and Escrow Holder. In the event
of such termination, Seller and Buyer agree that the actual damages which Buyer would
suffer as a result of Seller's default are extremely difficult and impractical to ascertain
inasmuch as it is difficult to evaluate the damages to Buyer. Therefore, Seller and Buyer
agree that, in addition to the return of the Escrow Deposit, the sum of Five Thousand
Dollars ($5,000.00) represents a reasonable estimate as to the amount of such damages
and Buyer shall be entitled to receive same from Seller as liquidated damages, which
shall be in lieu of specific performance and all other damages or remedies that would
otherwise be available to Buyer, if Seller fails to Close the Escrow on account of Seller's
breach of this Agreement.
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4. CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE. Buyer acknowledges
that Buyer has made a general inspection of the Property prior to executing this
Agreement, that Buyer is generally satisfied with the condition of the Property and that
this sale is an "AS -IS" Sale. Buyer shall, however, have until ninety (90) days after
execution of this agreement to make a detailed inspection of the Property and may, by
written notice to Seller and Escrow Holder, on or before one -hundred (120) days after
execution of this agreement, terminate this Agreement and cancel the Escrow for any
reason.
After one -hundred twenty (120) days after execution of this agreement Buyer's
obligation to purchase the Property and Seller's obligation to sell the Property is subject
to the satisfaction of all the conditions, set forth below, within the time periods specified.
If Buyer is not satisfied with the Property for the reasons outlined below and Buyer
notifies Seller and Escrow Holder in the manner and within the stated applicable time
period required herein, Buyer may terminate this Agreement and cancel the Escrow as
provided in this Agreement. Buyer may waive, in writing, any or all the conditions, in
whole or in part, without prior notice to Seller.
If Closing does not occur for any reason, other than Seller's default, Buyer shall
promptly deliver to Seller all surveys, plans and reports or other documents concerning
the condition of the Property, that are prepared by or for Buyer under this Article.
A. Approval Of Title Commitment. Buyer hereby authorizes Escrow
Holder to order, at Buyer's expense, a commitment ("Commitment") for an Owner's
Policy of Title Insurance from First American Title Insurance Company_to be issued to
Buyer, at Closing, pursuant to instructions herein. Escrow Holder shall forward the
Commitment, when received, to Buyer and Seller. Buyer shall, within fifteen (15)
business days following Buyer's receipt of the Commitment, notify Escrow Holder and
Seller of Buyer's written objection (s) to any exceptions shown on the Commitment.
Seller shall, within fifteen (15) business days following its receipt of Buyer's objections,
notify Buyer whether Seller intends to cure such objections. If Seller elects not to cure
such objections, Buyer may either terminate this Agreement, as provided herein, or elect
to purchase the Property despite its objections. In any event, Buyer's failure to respond,
on or before thirty (30) days after execution of this agreement shall be deemed conclusive
evidence of Buyer's approval of the condition of title as shown on the Commitment.
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B. Access To The Property. Until the Closing of this Agreement Seller
grants to Buyer, its employees and agents a limited license to enter on the Property, so
long as the activities do not damage the Property, to conduct reasonable surveys,
inspections and tests, at Buyer's cost, as may be necessary or desirable in Buyer's sole
judgment and discretion, to ascertain all aspects of the physical condition of the
Property, including, but not limited to the condition of the soil and the presence of toxic
and hazardous waste materials, if any.
Buyer agrees that access to the Property shall be at reasonable times and
during ordinary business hours. The Property shall be kept free and clear of all
mechanics' and materialmen's' liens arising out of any activities by Buyer. Buyer agrees
to repair any damage to the Property caused by its inspection thereof and Buyer shall
indemnify, defend and hold Seller harmless against all claims, losses, liabilities,
damages or expenses (including, without limitation, attorneys' fees) which may arise
from or be related to Buyer's inspection of the Property. Notwithstanding the foregoing
sentence, if Buyer is required to report any of its findings concerning the condition of
the Property to a governmental agency and such findings cause Buyer to terminate this
agreement, pursuant to the terms contained herein, the above indemnity shall not cover
any claim made by such agency against Seller. If, however, Buyer elects to purchase the
Property despite such findings, Buyer shall indemnify Seller against any and all claims
made by such agency concerning the Property and Buyer agrees that it is purchasing
the Property "AS -IS".
If based on Buyer's due diligence, Buyer disapproves the physical condition of
the Property, Buyer may by written notice to Seller and Escrow Holder, terminate this
Agreement. In such written notice, Buyer must specifically state what aspect of the
physical condition of the Property does not meet with the Buyer's approval, what Buyer
is using as a basis for terminating this Agreement and furnish Seller with the written
information, notices and reports on which Buyer is basing its reason for terminating the
agreement. All reports should be originals or certified copies from the qualified and
licensed companies that Buyer hired to make such evaluations. Buyer's failure to
respond on or before thirty (30) days after execution of this agreement shall be deemed
conclusive evidence of Buyer's approval of the physical condition of the Property. Buyer
shall not have access onto Seller's Remaining Property, either prior to or after Closing.
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C. Delivery Of Documents. Seller shall have executed, acknowledged
(if required) and delivered all documents and instruments required of Seller to Escrow
Holder, as required in this Agreement.
S. CONDITION OF "AS IS" PROPERTY. BUYER ACKNOWLEDGES THAT
EXCEPT FOR ANY EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED
IN THE AGREEMENT, THE DEED, AND THE ENVIRONMENTAL DISCLOSURES
REQUIRED UNDER WASHINGTON LAW, BUYER IS NOT RELYING ON ANY
WRITTEN, ORAL, IMPLIED OR OTHER REPRESENTATIONS, STATEMENTS OR
WARRANTIES BY SELLER OR ANY AGENT OF SELLER OR ANY REAL ESTATE
BROKER OR SALESMAN. ALL PREVIOUS WRITTEN, ORAL, IMPLIED OR OTHER
STATEMENTS, REPRESENTATIONS, WARRANTIES OR AGREEMENTS, IF ANY,
ARE MERGED HEREIN.
SELLER HEREBY ACKNOWLEDGES THAT IT HAS REVIEWED THE SELLER
DISCLOSURE FORM IN RCW 64.06.013 AND UNDERSTANDS ITS OBLIGATIONS
UNDER THAT CHAPTER. SELLER FURTHER ACKNOWLEDGES THAT UNDER
WASHINGTON LAW, BUYER MAY NOT AND DOES NOT WAIVE RECEIPT OF THE
"ENVIRONMENTAL" SECTION OF THE SELLER DISCLOSURE STATEMENT, IF THE
ANSWER TO ANY OF THE QUESTIONS IN THE "ENVIRONMENTAL" SECTION IS
"YES."
OTHER THAN AS SPECIFICALLY DISCLOSED HEREIN, SELLER HAS NOT
MADE, DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTIES,
REPRESENTATIONS, COVENANTS OR GUARANTEES, EXPRESSED OR IMPLIED,
OR ARISING BY OPERATION OF LAW, AS TO THE MERCHANTABILITY,
HABITABILITY, QUANTITY, OR QUALITY OF THE PROPERTY OR ITS SUITABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, EXCEPT WITH REGARD
TO ENVIRONMENTAL CONDITION OF THE PROPERTY AS REQUIRED BY RCW
64.06.010.
UPON CLOSING, BUYER AFFIRMS THAT IT HAS (i) INVESTIGATED AND
INSPECTED THE PROPERTY TO ITS SATISFACTION AND IS FAMILIAR AND
SATISFIED WITH THE CONDITION OF THE PROPERTY AND (ii) HAS MADE ITS
OWN DETERMINATION AS TO (a) THE MERCHANTABILITY, QUANTITY, QUALITY
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AND CONDITION OF THE PROPERTY, AND (b) THE PROPERTY'S SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR USE. BUYER HEREBY ACCEPTS
THE PROPERTY IN ITS PRESENT CONDITION ON AN "AS IS", "WHERE IS" AND
"WITH ALL FAULTS"BASIS AND ACKNOWLEDGES THAT (i) WITHOUT THIS
ACCEPTANCE, THIS SALE WOULD NOT BE MADE, (ii) THAT THE PURCHASE PRICE
REFLECTS THE EXISTING CONDITION OF THE PROPERTY, AND (iii) SELLER
SHALL BE UNDER NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIR,
ALTERATION, REMEDIATION OR OTHER WORK OF ANY KIND WITH RESPECT TO
ANY PORTION OF THE PROPERTY.
EXCEPT AS OTHERWISE AGREED TO HEREIN, SELLER IS HEREBY
RELEASED BY BUYER AND ITS SUCCESSORS AND ASSIGNS OF AND FROM ANY
AND ALL HERETOFORE UNKNOWN RESPONSIBILITY, LIABILITY, OBLIGATIONS
AND CLAIMS, INCLUDING (1) ANY OBLIGATION TO TAKE THE PROPERTY BACK
OR REDUCE THE PRICE, OR (2) ACTIONS FOR CONTRIBUTION OR INDEMNITY,
THAT BUYER OR ITS SUCCESSORS AND ASSIGNS MAY HAVE AGAINST SELLER
OR THAT MAY ARISE IN THE FUTURE, BASED IN WHOLE OR IN PART, UPON THE
PRESENCE OF HERETOFORE UNKNOWN TOXIC OR HAZARDOUS SUBSTANCES,
MATERIALS, OR WASTES OR OTHER UNKNOWN POTENTIAL ENVIORNMENTAL
CONTAMINATES ON WITHIN OR UNDER THE SURFACE OF THE PROPERTY.
BUYER FURTHER ACKNOWDLEDGES THAT THE PROVISIONS OF THIS
ARTICLE HAVE BEEN FULLY EXPLAINED TO BUYER AND THAT BUYER FULLY
UNDERSTANDS AND ACCEPTS THE SAME. THE PROVISIONS OF THIS ARTICLE
SHALL SURVIVE CLOSING AND SHALL BE INCLUDED IN THE DEED CONVEYING
THE PROPERTY TO BUYER.
6. NON -COMPETITION AND RESTRICTED USE. Buyer, its successors and
assigns, hereby agree that no portion of the Property shall: (1) be operated as or in
support of an automobile parts store or for the sale of automobile parts, supplies and
accessories, or any combination thereof or (2) be utilized for the advertising of any of the
above purposes by any sign, billboard, banner, vehicle or other visual or audible means,
or (3) be used for any of the following: flea market or similar business; adult
entertainment; commercial indoor amusements; schools of any type; churches;
nightclubs; cocktail lounges; taverns; entertainment facilities; cyber cafes; undertaking
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establishments; bingo games or off-track betting agencies, offices, either private or
government; car rentals, car sales or parking of vehicles offered for lease or sale;
restaurants; post offices or postal facilities; gymnasiums; spas; tanning facilities; dance
studios or health clubs; theaters, either motion picture or live; bowling alley; and skating
rink of any type shall be located upon the Property.
The clauses above shall be placed as a restriction on the Deed to be delivered by
Seller to Buyer and shall run with the land and be binding upon and inure to the benefit
and obligation of the successors and assigns of Seller and Buyer, respectively, for a time
period of twenty-nine (29) years from the date of the recording of the Deed.
7. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE. Seller's obligation
to sell the Property is subject to the satisfaction of all the conditions set forth below in
this Article 7, within the time periods specified. If any of these conditions are not
satisfied within the stated applicable time period, Seller may terminate this Agreement
and cancel the Escrow under Article 3 above. In the event Seller terminates this
Agreement pursuant to this Article or because Buyer is otherwise in breach of this
Agreement, the Escrow Deposit shall be distributed to Seller as liquidated damages
pursuant to Article 3.1 hereinabove. Seller may waive, in writing, any or all the
conditions, in whole or in part, without prior notice to Buyer.
A. Delivery Of Documents. Buyer shall have executed, acknowledged (if
required) and delivered all monies, documents and instruments to Escrow Holder, as
required in this Agreement.
B. Approvals By Buyer. Buyer shall have, on a timely basis approved or
waived the conditions to Buyer's performance, as described in Article 4 above.
C. Survey of the Property. Buyer shall have provided Seller with the
survey and legal description(s) required pursuant to Article 1.2 hereinabove and said
survey and legal description(s) have been approved, in writing, by Seller. If the survey
discloses any matters that in Seller's sole opinion would be detrimental to Seller's
Remaining Property were the Property to be transferred pursuant to this Agreement,
Seller may, at Seller's option, terminate this Agreement. If Seller does not terminate the
Agreement, Buyer shall, at Closing, for the benefit of Seller's Remaining Property, grant
to Seller an easement or enter into an agreement with Seller, the terms of which must
have been approved by Seller, to ensure that the matter disclosed no longer would be
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detrimental to Seller's Remaining Property, if the Property were transferred pursuant to
this Agreement.
8. CLOSING OF ESCROW.
A. Demands. Escrow Holder is hereby authorized and instructed to obtain
demands for payment of any recorded liens against the Property and, after approval of
such demands by Seller (which approval shall not be unreasonably withheld), to pay
such demands and secure the release of such liens at the Closing out of the funds
deposited into Escrow by Seller or Buyer.
B. Allocation Of Costs And Expenses. The expenses of Escrow Holder and
costs and expenses of consummating the transaction contemplated in this Agreement
shall be paid in the following manner:
1. By Buyer. Buyer shall pay for (a) the cost of Owner's Policy of Title
Insurance referred to in Article 8(F) below; (b) the cost of recording the Deed to Buyer,
including Revenue Stamps and/or any transfer tax, if applicable; (c) any and all costs
associated with the cost of recording any documents concerning Buyer's financing, if
any; (d) real property taxes, assessments and personal property taxes, if any, shall be
prorated as of the date of Closing based upon the latest available tax information and
(e) Escrow Holder's fee and/or any Closing fee(s).
2. By Seller. Seller shall pay (a) all costs associated with Seller's tax-
deferred exchange transaction, if any; (b) any other expense associated with the Property
to the date of Closing; (c) the proration of real property taxes, assessments and personal
property taxes, if any, with respect to the Property based upon the latest available tax
information; (d) the cost of removal of any liens caused by Seller; (e) the cost of deed
preparation and (fl a real estate commission payable to City Contract Realtor, Rob
Ellsworth, SVN-Retter and Co. according to a separate agreement.
3. Any other costs or expenses shall be allocated between and charged
to Buyer and Seller in accordance with Escrow Holder's usual practices.
4. If any errors or omissions are made regarding adjustments and
prorations as aforesaid, the parties shall make the appropriate corrections promptly
upon the discovery thereof. If any estimations are made at the Closing regarding
adjustments or prorations, the parties shall make the appropriate correction promptly
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when accurate information becomes available. Any corrected adjustment or proration
shall be paid in cash to the party entitled thereto.
C. Allocation Of Costs If Escrow Fails To Close. In the event Escrow fails
to Close as a result of Buyer's election to terminate the Agreement or because Buyer
fails to comply with its obligations hereunder, the cost of the Commitment and any
Escrow cancellation charges shall be paid by Buyer. In the event Escrow fails to Close
because of failure of Seller to comply with its obligations hereunder, such costs shall be
paid by Seller. In the event Escrow shall fail to Close for any other reason, such costs
shall be divided equally between the parties.
D. Deposits By Buyer Into Escrow. At least one (1) business day prior to
the Closing, Buyer shall deposit with Escrow Holder the balance of the Purchase Price
in funds acceptable to Escrow Holder for immediate credit toward payment of the
Purchase Price, and any additional funds or documents as may be necessary to comply
with this Agreement.
E. Deposits By Seller Into Escrow. At least one (1) business day prior to
the Closing, Seller shall deposit with Escrow Holder the Deed to Buyer, duly executed,
acknowledged and in recordable form, and any additional funds or documents as may
be necessary to comply with this Agreement. Seller shall not be in default for failing to
deposit said documents one (1) business day prior to Closing if Escrow Holder fails to
provide said documents to Seller, for Seller's review, at least three (3) business days
prior to Closing. If Escrow Holder fails to provide said documents to Seller at least three
(3) business days prior to the Closing, Seller shall, within a reasonable time after receipt
of such documents, review, execute and return the documents to Escrow Holder and
this Agreement shall be automatically extended to allow Seller three (3) business days,
after receipt of such documents, to review, execute and return the documents to Escrow
Holder.
F. Policy Of Title Insurance. At the Closing, Escrow Holder shall deliver to
Buyer a Policy of Title Insurance in the amount of the Purchase Price insuring title
vested in Buyer, free of encumbrances, except:
1. All non -delinquent general and special real property taxes and
assessments.
2. Easements, encumbrances, covenants, conditions, restrictions,
reservations, rights-of-way and other matters of record or that would be shown by a
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current and accurate survey of the Property of whatever kind or nature, including, but
not limited to, those matters relating to utility lines, roads, sewers, rights of surface
entry, and the zoning and use regulations of any municipal, county or state agency or
body affecting the Property, as shown on the Commitment approved by Buyer. Buyer
may, at Buyer's cost, arrange for such additional title insurance coverage as is available
under applicable State and local underwriting requirements and practice.
G. Disbursement And Other Actions By Escrow Holder. Upon the
Closing, Escrow Holder shall promptly undertake all of the following in the manner
herein below indicated:
1. Cause the Deed and any other instruments which the parties so direct
to be recorded in the official records of the County and State governing the Property.
2. Disburse all funds deposited with Escrow Holder by Buyer in payment
of the Purchase Price for the Property as follows:
a) Deduct therefrom all items chargeable to the account of Seller
pursuant hereto;
b) The remaining balance of the funds so deposited by or for the
account of Buyer shall be disbursed to Seller promptly upon the Closing.
3. Deliver the Policy of Title Insurance to Buyer.
9. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Buyer:
A. Seller is duly organized, validly existing and in good standing in the State
of its formation, and has all requisite power and authority to own and sell property and
conduct business in the State where the Property is located, and each individual
executing this Agreement on behalf of Seller represents and warrants that he/she is
duly authorized to execute and deliver this Agreement on behalf of Seller.
B. To the best of the actual knowledge of Seller's Excess Properties
Department, without investigation, no notices of any violation relating to the Property
or its use have been received by Seller; there are no writs, injunctions, decrees, orders
or judgments outstanding and there are no lawsuits, claims, proceedings or
investigations pending or threatened relating to the ownership, use, maintenance or
operation of the Property; nor, to the best knowledge of Seller, are there any bases for
such lawsuits, claims, proceedings or investigations being instituted or filed.
WA9788 13
10. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents
and warrants to Seller:
A. Buyer is duly organized, validly existing, in good standing in the State of its
formation, and has all requisite power and authority to purchase and own property and
conduct business in the State where the Property is located, and each individual
executing this Agreement on behalf of Buyer represents and warrants that he/she is
duly authorized to execute and deliver this Agreement on behalf of Buyer.
B. In addition to any other representations and warranties contained in this
Agreement, Buyer represents and warrants that in making its decision to purchase the
Property, Buyer represents that it has relied and will rely solely upon its own
independent investigation of the Property, Seller's specific representations and
warranties contained in this Agreement and the Commitment, and is not relying on any
statement or act or omission of Seller, its attorneys, employees, agents or
representatives, except as specifically set forth in this Agreement.
C. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER SHALL HAVE NO
LIABILITY TO BUYER, AND BUYER SHALL RELEASE SELLER FROM ALL RISKS
AND LIABILITY (INCLUDING CONTRACTURAL AND/OR STATUTORY ACTIONS FOR
CONTRIBUTION OR INDEMNITY), FOR, CONCERNING, OR REGARDING (1) THE
NATURE AND CONDITION OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
THE SUITABILITY THEREOF FOR ANY ACTIVITY OR USE; (2) ANY
IMPROVEMENTS OR SUBSTANCES LOCATED THEREON; OR (3) THE COMPLIANCE
OF THE PROPERTY WITH ANY LAWS, RULES ORDIANCES, OR REGULATIONS OF
ANY GOVERNMENT OR OTHER BODY. THE FOREGOING INCLUDES A RELEASE
OF SELLER FROM CLAIMS BASED ON SELLER'S NEGLIGENCE IN WHOLE OR IN
PART AND CLAIMS BASED ON STRICT LIABILITY. BUYER AND ITS SUCCESSORS
AND ASSIGNS HAVE, AND SHALL BE DEEMED TO HAVE ASSUMED ALL RISK AND
LIABILITY WITH RESPECT TO PRESENCE OR REMEDIATION OF ALL UNKNOWN
TOXIC OR HAZARDOUS SUBSTANCES, MATERIALS, OR WASTES OR OTHER
ACTUAL OR POTENTIAL ENVIRONMENTAL CONTAMINATES ON, WITHIN OR
UNDER THE SURFACE OF THE PROPERTY, INCLUDING BOTH KNOWN OR
UNKNOWN, APPARENT, NON -APPARENT OR LATENT, AND WHETHER EXISTING
PRIOR TO, AT, OR SUBSEQUENT TO, TRANSFER OF THE PROPERTY.
WA9788 14
11. TAX CERTIFICATION. Section 1455 of the Internal Revenue Code provides that
the transferee of a United States real property interest must deduct and withhold a tax
based on the amount realized by the transferor on the disposition, if the transferor is a
foreign person. Seller is not a foreign person, and the "FIRPTA" certification will be
provided to Escrow Holder by Buyer at Closing.
12. INTENTIONALLY OMITTED.
13. NOTICES. All notices or demands required or permitted to be given or served
pursuant to this Lease shall be deemed to have been given or served only if in writing,
postage and/or delivery fees pre -paid and shall be sent by U.S.P.S. Certified Mail,
Return Receipt Requested or via a nationally recognized overnight (or 2 -day) delivery
service that customarily maintains a record of delivery (e.g. FedEx or UPS), which
notices and demands shall be deemed served when delivered (or when delivery is first
attempted and refused), and which notices and demands shall be forwarded to the
following addresses:
Seller:
AutoZone Parts, Inc.
c/o AutoZone, Dept 8700
123 S. Front Street
Escrow Holder
First American Title Insurance Company
Attn: Diane Tisch
10355 Citation Drive
Suite 100
Brighton, MI 48116
Phone: 810.220.7529
Buyer:
City of Pasco, WA
Dave Zabell, City Manager
525 N. 3rd Ave, Pasco, WA
The above addresses and information may be changed from time to time by
written notice to the other parties in the manner provided herein.
14. MISCELLANEOUS.
WA9788 15
A. Time is of the essence as to each and every provision of this Agreement.
B. This Agreement contains the entire agreement between the parties hereto
with respect to the matters covered herein and may be amended only by evidence of
written documentation signed by both Buyer and Seller prior to its submittal to any
third party or entity for purposes of implementation, change or effect.
C. Each party will, whenever and as often as it shall be required by the other
party, execute, acknowledge and deliver such further instructions as may be reasonably
requested in order to complete the sale, conveyance and transfer herein provided for,
and to do any and all other acts and to execute, acknowledge and deliver to Escrow
Holder any and all documents as may be reasonably requested in order to carry out the
intent and purposes of this Agreement.
D. Buyer may not assign its rights or delegate its obligations under this
Agreement unless the assigned is approved, in writing, by Seller prior to the perfection
of such assignment. If an assignment is approved by Seller, this Agreement shall be
binding on and inure to the benefit of the heirs, successors and assigns of the parties
hereto. Notwithstanding any assignment or purported assignment hereunder, Buyer
agrees that it shall remain bound to all warranties, representations, indemnifications
and obligations agreed to herein and that the assignment shall in no way release Buyer
from its representations and warranties contained in this Agreement.
E. Should any part, term or provision of this Agreement, or any document
dealing with any entity set forth within this Agreement and required herein to be
executed or delivered at the Closing be declared invalid, void or unenforceable, all
remaining parts, terms and provisions hereof shall remain in full force and effect and
shall in no way be invalidated, impaired or otherwise affected thereby.
F. The prevailing party in any action instituted to enforce or interpret any
provision of this Agreement shall be entitled to all fees, expenses and costs, including
reasonable attorney fees as fixed by the Court.
G. This Agreement shall be construed in accordance and interpreted,
governed and enforced under and according to the laws of the State in which the
Property is located.
H. No representations, promises, conditions or warranties with reference to
the execution of this Agreement have been made or entered into between the parties
WA9788 16
hereto other than as herein expressly provided, and except to the extent that express
warranties are contained herein.
I. Buyer shall be entitled to possession of the Property at the Closing.
Possession shall be delivered outside of Escrow, and Escrow Holder shall incur no
liability with respect thereto.
J. If the Property or the improvements thereto is partially or totally destroyed,
or becomes the subject matter of a taking under the power of eminent domain by any
governmental agency prior to the Closing, Buyer shall have the option to terminate this
Agreement and cancel the Escrow in accordance with Article 3 above, or proceed with
this transaction and be entitled to receive from Seller an assignment of the proceeds, if
any, of any insurance policy coverage and other claims related to damage to the
Property.
K. In addition, the parties hereby agree that each party and its attorneys
have reviewed and revised this Agreement and that the normal rule of construction, to
the effect that any ambiguities are resolved against the drafting party, shall not be
employed in the interpretation of this Agreement and no other rule of strict construction
shall be used against any party. All exhibits and schedules attached or to be attached
hereto, and all other agreements and instruments referred to herein, are hereby
incorporated herein by reference, as fully as if copied herein verbatim.
L. Each party represents that it has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to consummate
this transaction.
15. SURFACE DRAINAGE RIGHTS. Seller shall retain the right to the drainage of
any surface water that currently drains onto or through the Property. Buyer agrees that
it will abide by all city codes and regulations relating to drainage and all requirements
for water retention regarding the development of this Property. These provisions shall
survive the Closing and shall be included in the Deed or other appropriate documents
to be recorded at Closing.
16. INTENTIONALLY OMITTED.
17. NO ACCESS. Buyer understands that it shall NOT have access to any of Seller's
Remaining Property.
WA9788 17
18. ACCEPTANCE DATE. If this Agreement is not fully executed by Buyer and
returned to Seller on or before sixty (60) days after execution of this agreement then this
Agreement shall be, at the sole option of Seller, terminated and cancelled in all respects,
and neither parry shall have any liability to the other.
19. COUNTERPARTS AND ELECTRONIC SIGNATURES. This Agreement may be
executed in counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Signature pages may be executed
via "wet" signature or electronic mark and the executed signature pages may be
delivered using pdf or similar file type transmitted via electronic mail, cloud -based
server, e -signature technology or other similar electronic means.
IN WITNESS WHEREOF, the parties hereby have executed this Agreement on
the day and year set forth below their signatures.
Buyer: Seller:
The City of Pasco, Washington, AutoZone Parts, Inc.,
a Municipal corporation a Nevada corporation
By: By:
Title: City Manager Title:
Ti
WA9788 18
EXHIBIT A
Insert site plan showing Property and Seller's Remaining Property
WA9788 19
EXHIBIT B
Insert legal description
WA9788 20
PASCO FIRE STATION
CONTEXT PLAN
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