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HomeMy WebLinkAbout4029 Resolution - Final Accpetance for Pearl St Lift StationRESOLUTION NO. 4029 A RESOLUTION ACCEPTING WORK PERFORMED BY C&E TRENCHING, LLC., UNDER CONTRACT FOR PROJECT NO. 15002, PEARL STREET LIFT STATION. WHEREAS, the work performed by C&E Trenching, LLC., under contract for the Pearl Street Lift Station has been examined by City of Pasco Engineering Division and has been found to be in apparent compliance with the applicable project specifications and drawings, and WHEREAS, it is the Engineering Division's recommendation that the City of Pasco formally accept the contractor's work and the project as complete. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON: That the City Council concurs with the Engineering Division's recommendation and thereby accepts the work performed by C&E Trenching, LLC., under contract for the Pearl Street Lift Station as being completed in apparent compliance with the project specifications and drawings, and Be It Further Resolved, that the City Clerk is hereby directed to notify the Washington State Department of Revenue of this acceptance, and Be It Further Resolved, that the final payment of retainage being withheld pursuant to applicable laws, regulations and administrative determination shall be released upon satisfaction of same and verification thereof by the Public Works Director and Finance Director. PASSED by the City Council of the City of Pasco, Washington this 19th day of January, 2021. ax.� 4 l Saul"K4artinez Mayor ATTEST: Debra Barham, CMC City Clerk Resolution - 1 APPROVED AS TO FORM: Kerr F w, PLLC City Attorneys `(-785 T EXHIBITA AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY Ss ESCROW INSTRUCTIONS THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY & 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 WA9788 1 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, WA9788 2 retention/ detention ponds and any other facilities located on the Property; and 7. Contour lines at one foot (1 ) 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. WA9788 3 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 WA9788 4 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. WA9788 5 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. WA9788 6 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. WA9788 7 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. 5. 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 WA9788 8 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 WA9788 9 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 WA9788 10 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 WA9788 11 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 WA9788 12 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 party 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 WIIEREOF, the parties hereby have executed this Agreement on the day and year set forth below their signatures. Buyer: The City of Pasco, Washington, a Municipal corporation :, Seller: AutoZone Parts, Inc., a Nevada corporation 0 Title: City Manager Title: Lo Title: WA9788 18 EXHIBIT A Insert site plan showing Property and Seller's Remaining Property WA9788 19 EXHIBIT B Insert legal description WA9788 20 PA SCO FIRE STATION CONTEXT PLAN