6b agreement
Item No. 6b_attach_2
Date of Meeting March 8, 2016
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement")
is made and entered into as of this ____ day of , 2016 (the "Effective
Date"), by and between the Port of Seattle, a municipal corporation of the State of
Washington ("Port"), and Snohomish County, a political subdivision of the State of
Washington ("County"), acting in its governmental capacity. The Port and the County are
hereinafter sometimes referred to jointly as the "Parties."
RECITALS
A. On or about December 18, 2009, the Port acquired from BNSF Railway
Company ("BNSF") pursuant to a Quit Claim Deed (the "BNSF Deed") recorded under
Snohomish County Auditor's File No. 200912210438, real property developed as a rail
corridor and commonly known as the Woodinville Subdivision.
B. Sections of the Woodinville Subdivision are improved with rail tracks and
certain commercial and industrial structures and fixtures associated with rail operations (the
"Improvements"). The Improvements were acquired by the Port from BNSF pursuant to a
Bill of Sale (the "BNSF Bill of Sale") executed on or about December 18, 2009. The
Improvements include that certain bridge structure over the Snohomish River connecting
portions of the Woodinville Subdivision (the "Snohomish River Bridge").
C. In addition to crossing the Snohomish River, the Snohomish River Bridge
crosses certain real property owned or controlled by BNSF (the "BNSF Mainline").
Concurrent with the execution of the BNSF Deed and the BNSF Bill of Sale, the Port
acquired by Easement Agreement a non-exclusive perpetual easement across and above the
BNSF Mainline (the "Bridge Easement").
D. The BNSF Deed, among other things, obligates BNSF to pay the Port and/or
King County the costs to investigate, remediate, respond to or otherwise cure any hazardous
substance releases or violations of environmental law to the extent such hazardous substance
releases or violations of environmental law (i) occurred as a result of the operations of
BNSF, its agents, employees, invitees or contractors, or its corporate predecessors and their
agents, employees, invitees or contractors, and (ii) have been ordered to be cured by an
applicable regulatory agency; provided however, that BNSF need only pay for such costs as
are necessary to bring the Woodinville Subdivision up to the standards for a freight railway
or the standards that the regulatory agency would apply for other affected properties (the
"BNSF Remediation Obligation").
E. In the BNSF Deed, BNSF reserved for itself an exclusive easement for freight
rail purposes over a portion of the Woodinville Subdivision (the "Freight Easement"). BNSF
thereafter conveyed the Freight Easement to GNP Rly, Inc., a Washington corporation
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REAL ESTATE PURCHASE AND SALE AGREEMENT
("GNP"), by Quit Claim Deed executed on or about December 18, 2009, and recorded under
Snohomish County Auditor's File No. 200912210439.
F. On or about December 18, 2009, the Port entered into an Operations and
Maintenance Agreement between Port of Seattle and GNP Rly, Inc. (the "O&M
Agreement"). The O&M Agreement sets forth the rights, obligations, terms, and conditions
as between the Port and GNP with respect to GNP's use of the Woodinville Subdivision for
freight rail operations. Concurrent with the execution of the O&M Agreement, pursuant to an
Assignment of Easement Agreement for Snohomish Bridge, the Port also assigned all of its
right, title, and interest in the Bridge Easement to GNP.
G. On or about December 8, 2012, through an involuntary bankruptcy
proceeding, the assets of GNP, including the right to operate under the Freight Easement, the
O&M Agreement, and the assigned Bridge Easement, were conveyed to Eastside
Community Rail, LLC, a Washington limited liability company ("Eastside Community
Rail"). Eastside Community Rail assumed all rights and obligations of GNP under the O&M
Agreement with the Port and the assigned Bridge Easement.
H. The Woodinville Subdivision is subject to an easement recorded on December
21, 2010, under Snohomish County Auditor's File No. 201012211039 in favor of Puget
Sound Energy (the "PSE Easement"), as amended by amendment recorded on February 12,
2013, under Snohomish County Auditor's File No. 201302120664.
I. By Real Estate Purchase and Sale Agreement dated February 8, 2013, King
County, a political subdivision of the State of Washington, contracted to purchase from the
Port (i) a fee interest over a portion of the Woodinville Subdivision located in King County,
and (ii) a trail easement over a portion of the Woodinville Subdivision located partially in
King County and partially in Snohomish County, which easement was recorded on February
13, 2013, under Snohomish County Auditor's No. 201302130771 (the "King County
Easement").
J. The Woodinville Subdivision is further subject to other rights and interests
granted to third parties pursuant to unrecorded third party leases, licenses, contracts, permits,
or other agreements for the use and/or occupancy of portions of the Woodinville Subdivision
as further defined in Section 8.1 ("Third Party Leases, Licenses, and Contracts").
K. On or about February 15, 2014, the Port and the County executed an
agreement entitled "Real Estate Purchase and Sale Agreement" in which the Port agreed to
sell and the County agreed to purchase that portion of the Woodinville Subdivision located
within Snohomish County, along with the Snohomish River Bridge and other Improvements
located along that portion of the Woodinville Subdivision lying within Snohomish County
(collectively referred to hereafter as the "Property").
L. On or about May 22, 2014, the County filed a petition seeking a declaratory
order from the Surface Transportation Board ("STB") confirming that that the County does
REAL ESTATE PURCHASE AND SALE AGREEMENT 2
not need STB authorization to acquire the Property. On or about March 3, 2015, the Surface
Transportation Board granted the County's petition.
M. On or about April 27, 2015, the County gave notice to the Port that it was
terminating the Real Estate Purchase and Sale Agreement dated February 15, 2014.
N. The County and the Port wish to enter into this second Agreement for the
purchase and sale of the Property. The County desires to acquire from the Port, and the Port
desires to sell to the County, pursuant to Chapter 39.33 of the Revised Code of Washington
(Intergovernmental Property Disposition Act) and the terms and conditions described below,
the Property for the purposes of developing a regional trail and other public uses and
transportation uses. The Property is legally described on Exhibit A to this Agreement. A
diagram map showing the approximate location of the Property is attached to this Agreement
as Exhibit B.
AGREEMENT
NOW, THEREFORE, in consideration of the respective agreements set forth below
and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. Purchase and Sale of the Property. The Port shall sell and convey to the
County, and the County shall purchase from the Port, subject to the terms and conditions set
forth below: (i) all of the Port's right, title, and interest in and to the Property, as defined in
Recital K above and including the real property, all Improvements, the Snohomish River
Bridge, and all other rights, privileges, and easements appurtenant to the Property; and (ii) all
of the Port's right, title, and interest in and to all Third Party Leases, Licenses, and Contracts,
as defined in Section 8.1 below, associated with the Property as of the date of closing.
2. Purchase Price. The purchase price for the Property shall be Three Million
Five Hundred Thousand and 00/100 Dollars ($3,500,000.00) (the "Purchase Price"). The
Purchase Price shall be paid in cash at closing, by wire transfer or other immediately
available funds.
3. Earnest Money. No earnest money deposit shall be made or required.
4. Title Insurance. No title insurance shall be required.
5. Conveyance of Title. Upon the closing of the transaction contemplated by
this Agreement, the Port shall deliver to the County a Quit Claim Deed for the Property, in
the form attached to this Agreement as Exhibit D (the "Deed"), subject to all matters of
record. In addition, upon the closing of the transaction contemplated by this Agreement, the
Port shall deliver to the County a Bill of Sale for the Improvements, including the Snohomish
River Bridge, in the form attached to this Agreement as Exhibit E.
REAL ESTATE PURCHASE AND SALE AGREEMENT 3
6. Condition of the Property.
6.1 Disclaimer of Warranties. Subject to the Port's express
representations, warranties, covenants and obligations under this Agreement, THE
COUNTY IS NOT RELYING ON, AND HEREBY WAIVES WARRANTY OF
MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND ANY OTHER REPRESENTATION OR WARRANTIES, EXPRESS
OR IMPLIED, OF ANY KIND WHATSOEVER FROM THE PORT WITH RESPECT
TO ANY MATTERS CONCERNING THE PROPERTY including, but not limited to the
physical condition of the Property; zoning status; tax consequences of this transaction;
utilities; operating history or projections or valuation; compliance by the Property with
Environmental Laws, as defined in Section 11 below, or other laws, statutes, ordinances,
decrees, regulations, and other requirements applicable to the Property; the presence of any
Hazardous Substances, as defined in Section 11 below, wetlands, asbestos, lead, lead-based
paint or other lead containing structures, urea formaldehyde, or other environmentally
sensitive building materials in, on, or under the Property; the condition or existence of any of
the above ground or underground structures or improvements, including tanks and
transformers in, on, or under the Property; the condition of title to the Property, and the Third
Party Leases, Licenses, Contracts, permits, orders, or other agreements, affecting the
Property.
6.2 No Reliance by County. The County represents and warrants to the
Port that except for the Port's express representations, warranties, covenants, and obligations
under this Agreement, the exhibits hereto and the BNSF Remediation Obligation, as defined
in Section 12 below, the County has not relied and will not rely on, and the Port is not liable
for or bound by, any warranties, guaranties, statements, representations, or information
pertaining to the Property or relating thereto made or furnished by the Port, any agent or
contractor of the Port, or any real estate broker or agent representing or purporting to
represent the Port, to whomever made or give, directly or indirectly, orally or in writing.
6.3 Survival. Notwithstanding any provision of this Agreement to the
contrary, the provisions of this Section 6 shall survive the closing of the transaction
contemplated herein and the delivery of the Deed to the County. The County and the Port
acknowledge that their willingness to enter into this Agreement reflects that the Property is
being conveyed subject to the provisions of this Section 6.
7. Partial Assignment and Assumption of O&M Agreement.
7.1 Active Rail Service. The County acknowledges that as of the
Effective Date of this Agreement, the Property is not "railbanked" (as defined and described
in Section 8(d) of the National Trails System Act, also known as the "Rails to Trails Act," 16
USC 1247(d) and 49 CFR 1152.29) and is presently subject to active freight rail operations
pursuant to the O&M Agreement as described in Recital F. The County further acknowledges
that as of the Effective Date of this Agreement, excursion rail operations on the Property are
not an active use and require Port consent under the terms of the O&M Agreement.
REAL ESTATE PURCHASE AND SALE AGREEMENT 4
7.2 Partial Assignment of O&M Agreement. Upon the closing of the
transaction contemplated by this Agreement, the Port shall assign to the County, by means of
an assignment agreement substantially in the form attached to this Agreement as Exhibit F
(the "Partial Assignment and Assumption of Operations and Maintenance Agreement"), the
Port's right, title, and interest in the O&M Agreement to the extent the O&M Agreement
affects the Property. The Port shall retain all its right, title, and interest in the O&M
Agreement to the extent the O&M Agreement affects other areas of the Woodinville
Subdivision that do not include the Property.
8. Assignment and Assumption of Third Party Leases, Licenses and
Contracts.
8.1 Existence of Third Party Leases, Licenses and Contracts. The
Property is currently encumbered by multiple unrecorded third party leases, licenses,
contracts, permits, or other agreements as more specifically identified in Exhibit C (the
"Third Party Leases, Licenses, and Contracts").
8.2 Assignment of Third Party Leases, Licenses and Contracts. Upon
the closing of the transaction contemplated by this Agreement, the Port shall assign all of its
right, title, and interest in the Third Party Leases, Licenses, and Contracts affecting the
Property to the County by means of an assignment agreement substantially in the form
attached to this Agreement as Exhibit G (the "Assignment and Assumption of Third Party
Leases, Licenses, and Contracts").
9. Covenants, Representations and Warranties of the Port. The Port hereby
makes the following covenants, representations, and warranties to the County, which
covenants, representations, and warranties shall be deemed made by the Port to the County as
of the Effective Date and again as of the Closing Date:
(i) The Port is a municipal corporation of the State of Washington, duly
organized, validly existing, and in good standing under the laws of the State of Washington,
has all requisite power and authority to execute and deliver this Agreement and to carry out
its obligations under this Agreement and the transactions contemplated hereby;
(ii) From the Effective Date to the Closing Date, the Port will notify the County
of each event of which the Port becomes aware is affecting the Property or any part thereof,
promptly upon learning of the occurrence of such event;
(iii) To the best of the Port's knowledge, there is no litigation, action, proceeding,
or investigation pending or threatened which pertains to the Property or the Port's ownership
thereof;
(iv) To the best of the Port's knowledge, neither the whole nor any portion of the
Property is subject to temporary requisition or use by any governmental authority or has been
REAL ESTATE PURCHASE AND SALE AGREEMENT 5
condemned or taken in any proceeding similar to a condemnation proceeding, nor is any such
proceeding contemplated;
(v) The Port has not received any written notice of, and the Port has no
knowledge of, any written notice from any governmental authority alleging any uncured
existing violation of any applicable governmental laws, statutes, ordinances, rules, codes,
regulations, or orders, including Environmental Laws, affecting the Property;
(vi) The Port has no knowledge, nor has the Port received written notice, of any
default or breach by the Port under any covenants, conditions, restrictions, rights of way,
easements, leases, licenses, or contracts affecting the Property or any portion thereof;
(vii) From the Effective Date to the Closing Date, the Port will not grant or create
any easement, right-of-way, encumbrance, restriction, covenant, lease, license, option to
purchase, or other right which would affect the Property prior to or after closing without the
County's written consent first having been obtained;
In the event any of the covenants, representations, or warranties contained in this
Section 9 become untrue prior to the date of closing as a result of occurrences or information
received by the Port subsequent to the Effective Date of this Agreement, the Port shall
promptly notify the County, in writing, and, within ten (10) days after receiving such notice,
the County may elect to (i) waive any objections and proceed with Closing, or (ii) terminate
this Agreement by delivering written notice of termination to the Port. The covenants and
representations made by the Port in this Section 9 shall survive the closing of the transaction
contemplated by this Agreement and shall not merge into the Deed.
10. Covenants, Representations and Warranties of the County. The County
hereby makes the following covenants, representations and warranties to the Port, which
covenants, representations, and warranties shall be deemed made by the County to the Port as
of the Effective Date and again as of the Closing Date:
(i) The County is a political subdivision of the State of Washington, duly
organized, validly existing, and in good standing under the laws of the State of Washington,
has all requisite power and authority to execute and deliver this Agreement and to carry out
its obligations under this Agreement and the transactions contemplated hereby;
(ii) From the Effective Date to the Closing Date, the County will timely perform
all of its monetary and non-monetary obligations required by the terms of this Agreement to
be performed by the County; and
(iii) There is no litigation, action, proceeding, or investigation pending or
threatened against the County that could prevent or impair the County's obligations
hereunder.
REAL ESTATE PURCHASE AND SALE AGREEMENT 6
In the event any of the covenants, representations, or warranties contained in this
Section 10 become untrue prior to the date of closing as a result of occurrences or
information received by the County subsequent to the Effective Date of this Agreement, the
County shall promptly notify the Port, in writing, and, within ten (10) days after receiving
such notice, the Port may elect to (i) waive any objections and proceed with Closing, or
(ii) terminate this Agreement by delivering written notice of termination to the County. The
covenants and representations made by the County in this Section 10 shall survive the closing
of the transaction contemplated by this Agreement and shall not merge into the Deed.
11. Hazardous Substances.
11.1 Definition of Environmental Law. The term "Environmental Law"
means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment,
decree, injunction, or common law pertaining in any way to the protection of human health
or the environment, including without limitation the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act, the
Toxic Substances Control Act, the Model Toxics Control Act, the Water Pollution Control
Act, laws concerning above ground or underground storage tanks, and any similar or
comparable state or local law.
11.2 Definition of Hazardous Substance. The term "Hazardous
Substance" means any hazardous, toxic, radioactive or infectious substance, material, or
waste as defined, listed or regulated under any Environmental Law, and includes without
limitation petroleum oil and any of its fractions.
11.3 Release from Liability. The County acknowledges that the Property
may contain Hazardous Substances and that Hazardous Substances released onto the
Property may have migrated onto neighboring properties at times prior to the Effective Date.
The Port acknowledges that the County is not in possession or control of the Property as of
the Effective Date. Except as otherwise provided in this Section 11 and Section 6, the County
waives, releases and discharges forever the Port from any and all present or future claims or
demands and any and all damages, losses, injuries, liabilities, causes of action (including
without limitation, causes of action in tort), costs, and expenses (including without limitation
fines, penalties and judgments, and attorney's fees) of any and every kind or character,
known or unknown (collectively "Losses") that the County might have asserted against the
Port arising from or in any way related to environmental conditions in, at, on, under, or
originating from the Property or the alleged presence, use, storage, generation, manufacture,
transport, release, leak, spill, disposal, or other handling of any Hazardous Substances in, on,
or under the Property. Losses shall include without limitation (a) the cost of any
investigation, removal, remedial, or other response action that is required by any
Environmental Law, that is required by judicial order or by order of or agreement with any
governmental authority, or that is necessary or otherwise is reasonable under the
circumstances, (b) Losses for injury or death of any person, and (c) Losses arising under any
Environmental Law enacted after the Effective Date. Nothing in this Agreement shall be
construed to waive or discharge any rights or claims the County may hold under the
REAL ESTATE PURCHASE AND SALE AGREEMENT 7
Environmental Laws, agreements or deeds, including the BNSF Remediation Obligation, to
seek indemnity or contribution from BNSF or other parties other than the Port for Losses
arising from or in any way related to environmental conditions on the Property.
11.4 Indemnification by the County. The BNSF Remediation Obligation
obligates BNSF, in specified situations, to investigate, remediate, respond to, or otherwise
cure (collectively, "Remediate" or "Remediation") certain environmental conditions related
to releases of Hazardous Substances or the violation of any Environmental Law. Effective
upon the closing of the transaction contemplated by this Agreement and pursuant to the
BNSF Deed and the Clarification to Assignment Agreement described in Section 11.5 below,
the Port assigns to the County all rights and obligations it holds to the BNSF Remediation
Obligation in so far as those rights and obligations pertain to the Property. Thereafter, as
between the County and the Port, the County will be responsible for all costs of Remediation
of Hazardous Substances released on or from the Property or violations of any
Environmental Law relating to the Property except to the extent (i) caused by or resulting
from the acts of Port or its officers, employees, agents, or contractors, or (ii) materially
exacerbated by the acts of the Port or its officers, employees, agents, or contractors so as to
release BNSF from or reduce its liability under the BNSF Remediation Obligation. The
County further agrees to indemnify and defend the Port against any and all Losses, as defined
in Section 11.3 above, that the Port sustains as a result of claims by third parties, including
but not limited to BNSF and federal, state, and local regulatory agencies for damages or
remediation costs related to environmental conditions in, at, on, under, or originating from
the Property, except that the County shall have no duty to indemnify or defend the Port for
Losses sustained as a result of claims (i) attributable to the operations of GNP and/or
Eastside Community Rail, and (ii) that arose during any period of time in which there was a
lapse in the insurance required of GNP, Eastside Community Rail, and/or Ballard Terminal
Railroad Company LLC (subcontractor to Eastside Community Rail) by the O&M
Agreement. The Port agrees that in the event the County is required to Remediate Hazardous
Substances released on or from the Property, the Port shall cooperate with the County to
obtain reimbursement of costs of Remediation from BNSF as provided in the BNSF
Remediation Obligation found in the BNSF Deed.
11.5 Clarification to Assignment of BNSF Remediation Obligation.
Upon the closing of the transaction contemplated by this Agreement, the Port shall deliver to
the County a copy of a letter executed by the Port and King County clarifying the intent of
the Port and King County regarding the allocation of rights and obligations as to the BNSF
Remediation Obligation (the "Clarification to Assignment Agreement"), in a form negotiated
between the Port, the County, and King County. The Clarification to Assignment Agreement
shall clarify that the BNSF Remediation Obligation was allocated to King County only
insofar as such obligations and rights apply to the section of the Woodinville Subdivision
purchased by King County in fee, as described in Recital I, and not to the King County
Easement.
11.6 Survival. The provisions of this Section 11 shall survive the
closing of the transaction contemplated by this Agreement and shall not merge into the Deed.
REAL ESTATE PURCHASE AND SALE AGREEMENT 8
The County and the Port acknowledge that their willingness to enter into this Agreement
reflects that the Property is being conveyed subject to the provisions of this Section 11.
12. Indemnification.
12.1 Immunity Under Applicable Law. Nothing in this Section 12 shall
limit the ability of the Port, the County or both of them to avail themselves of the protection
offered by any applicable law affording immunity to the Port or the County, including, to the
extent applicable, RCW 4.24.210, or any successor statute.
12.2 Indemnification by Port. Subject to and without in any way limiting
the provisions of Section 6 and Section 11 of this Agreement, the Port shall indemnify,
defend, and hold the County, its successors and assigns, harmless from and against all
liabilities, suits, losses, costs, damages, claims, expenses, penalties, and/or charges,
including, without limitation, reasonable attorneys' fees and disbursements, suffered or
incurred by reason of (i) the breach of any representation, warranty, or agreement of the Port
set forth in this Agreement; (ii) the failure of the Port to perform any obligation required to
be performed by it under this Agreement; (iii) any liabilities arising out of the ownership,
maintenance, and/or operation of the Property by the Port prior to closing; or (iv) any
accidents, damages, or injuries to persons or property from any cause occasioned in whole or
in part by any acts or omissions of the Port, its agents and employees, that occur prior to
closing. The Port upon notice from the County shall defend any such claim at its expense and
with counsel reasonably satisfactory to the County. This indemnification is intended for the
sole benefit of the County and shall not inure to the benefit of any third party.
12.3 Indemnification by County. Subject to and without in any way
limiting the provisions of Section 6 and Section 11 of this Agreement, the County shall
indemnify, defend, and hold the Port, its successors and assigns, harmless from and against
all liabilities, suits, losses, costs, damages, claims, expenses, penalties and/or charges,
including, without limitation, reasonable attorneys' fees and disbursements, suffered or
incurred by reason of (i) the breach of any representation, warranty or agreement of the
County set forth in this Agreement; (ii) the failure of the County to perform any obligation
required to be performed by it under this Agreement; (iii) any liabilities arising out of the
ownership, maintenance and/or operation of the Property by the County after closing; or (iv)
any injuries to persons or property from any cause occasioned in whole or in part by any acts
or omissions of the County, its agents and employees, that occur after closing. The County
upon notice from the Port shall defend any such claim at its expense and with counsel
reasonably satisfactory to the Port. This indemnification is intended for the sole benefit of the
Port and shall not inure to the benefit of any third party.
12.4 Waiver of Immunity. Solely to give full force and effect to the
indemnities contained herein and not for the benefit of any third party, each Party specifically
and expressly waives any immunity it may have under Washington State Industrial Act,
RCW Title 51, and acknowledges that this waiver was mutually negotiated by the parties
herein. This provision shall not be interpreted or construed as a waiver of any party's right to
assert such immunity, defense, or protection directly against any of its own employees. In no
REAL ESTATE PURCHASE AND SALE AGREEMENT 9
event shall either party's indemnification obligations under this Agreement be limited to the
extent of any insurance available to or provided by the obligated party.
12.5 Survival. The provisions of this Section 12 shall survive the closing
of the transaction contemplated by this Agreement and shall not merge into the Deed.
13. Closing.
13.1 Closing Date. The closing of the transaction contemplated by this
Agreement (the "Closing") shall occur through the escrow department of the Chicago Title
Insurance Company (the "Escrow Agent") on or about April 15, 2016 (the "Closing Date");
provided that in no event shall the Closing occur later than April 26, 2016 (the "Outside
Closing Date"). If the transaction fails to close by the Outside Closing Date, either party may
terminate this Agreement by delivering written notice of termination to the other party.
Alternatively, the Parties may further extend the Closing Date by amending this Agreement
as provided in Section 19.7 below.
13.2 Escrow Deposits by Port. On or before the Closing Date, the Port
shall deliver the following to the Escrow Agent:
(i) The duly executed and acknowledged Deed, in the form attached to
this Agreement as Exhibit D;
(ii) An executed real estate excise tax affidavit for the Property, in the
form required by Washington law;
(iii) The duly executed and acknowledged Bill of Sale, in the form attached
to this Agreement as Exhibit E;
(iv) Two (2) executed and acknowledged counterpart originals of a Partial
Assignment and Assumption of Operations and Maintenance Agreement, in the form
attached to this Agreement as Exhibit F;
(v) Two (2) executed and acknowledged counterpart originals of an
Assignment and Assumption of Third Party Leases, Licenses, and Contracts Agreement, in
the form attached to this Agreement as Exhibit G and including an updated schedule of any
Third Party Leases, Licenses, and Contracts of which the Port has become aware or has
entered into since the Effective Date pursuant to Section 14 below;
(vi) An original affidavit pursuant to Section 1445(b)(2) of the Federal
Internal Revenue Code (the "Federal Code"), certifying that the Port is not a foreign person
under the meaning of the Federal Code, in the form attached to this Agreement as Exhibit H;
(vii) A copy of a duly executed and acknowledged Clarification to
Assignment Agreement as described in Section 11.5 above;
REAL ESTATE PURCHASE AND SALE AGREEMENT 10
(viii) The Port's approved estimated settlement statement; and
(ix) Any other documents, instruments, records or correspondence
reasonably required by the Escrow Agent to consummate the purchase of the Property in
accordance with the terms of this Agreement.
13.3 Escrow Deposits by County. On or before the Closing Date, the
County shall deliver the following to the Escrow Agent:
(i) The Purchase Price, in cash (United States funds);
(ii) One duly executed and acknowledged counterpart original of the
Deed, in the form attached to this Agreement as Exhibit D;
(iii) An executed real estate excise tax affidavit for the Property, in the
form required by Washington law;
(iv) One duly executed and acknowledged counterpart original of the Bill
of Sale, in the form attached to this Agreement as Exhibit E;
(v) Two (2) executed and acknowledged counterpart originals of a Partial
Assignment and Assumption of Operations and Maintenance Agreement, in the form
attached to this Agreement as Exhibit F;
(vi) Two (2) executed and acknowledged counterpart originals of an
Assignment and Assumption of Third Party Leases, Licenses, and Contracts Agreement, in
the form attached to this Agreement as Exhibit G;
(vii) The County's approved estimated settlement statement; and
(viii) Any other documents, instruments, records, or correspondence
reasonably required by the Escrow Agent to consummate the purchase of the Property in
accordance with the terms of this Agreement.
13.4 Closing Costs. Through escrow at Closing, the Port shall pay one half
of the Escrow Agent's escrow fee. Through escrow at Closing, the County shall pay (i) the
cost of recording the Deed, and (ii) one half of the Escrow Agent's escrow fee. Each party
shall bear its own legal fees. Property taxes for the current year, if any, will be prorated as of
Closing. Water and other utilities shall be prorated as of Closing. Rents under any Third
Party Leases, Licenses, or Contracts burdening the Property shall be pro-rated as of closing,
provided, that the requirement for proration of rents shall apply only to Third Party Leases,
Licenses, or Contracts with cumulative annual payments exceeding Five Hundred Dollars
($500.00). All other costs of Closing, if any, shall be borne by the Port and the County in a
manner consistent with local practice for the county in which the Property is located. Upon
REAL ESTATE PURCHASE AND SALE AGREEMENT 11
the request of either party, adjustments shall be made between the parties after the date of
closing for the actual amount of any prorations made on the basis of estimates as of the date
of closing.
14. Leases, Licenses, and Contracts Affecting the Property. During the period
of time between the Effective Date of this Agreement and the date of closing, the Port shall
not enter into any leases, sub-leases, licenses, or other contracts affecting all or any portion of
the Property without the prior approval of the County. The County shall give written notice
to the Port of its approval or disapproval of any such proposed contract within thirty (30)
days of receiving same from the Port. Should the County fail to respond to a request for
approval of a proposed contract within the specified time period, the County's approval of
such contract shall be deemed given.
15. Risk of Loss. In the event of material loss of or damage to the Property prior
to closing, the County may terminate this Agreement by giving written notice of termination
to the Port.
16. Eminent Domain. If prior to the date for closing, title to all or any part of the
Property is taken by eminent domain, the County may, by written notice to the Port, elect to
cancel this Agreement prior to the date set for closing by delivering written notice of its
election to the Port. In the event the County elects to terminate this Agreement pursuant to
this Section 16, all rights or obligations of the Port and the County under this Agreement
shall immediately terminate and be of no further force or effect. Unless this Agreement is so
canceled, it shall remain in full force and effect and the Port shall assign, transfer, and set
over to the County all the Port's right, title, and interest in and to any awards that may be
made for such taking.
17. Default and Remedies. If there is an event of default under this Agreement
by either Party, the non-defaulting Party will be entitled (i) to seek specific performance of
the defaulting Party's obligations under this Agreement or (ii) to terminate this Agreement by
written notice to the defaulting Party and Escrow Agent. If the non-defaulting Party elects to
terminate this Agreement, all documents will be immediately returned to the Party who
deposited them, and neither Party will have any further rights or obligations under this
Agreement, except as otherwise provided in this Agreement, other than that the defaulting
Party shall pay any costs of terminating the escrow and any cancellation fee for the
Preliminary Commitment.
18. Notices. All notices to be given by each Party to the other pursuant to this
Agreement shall be delivered in person, by facsimile or deposited in the United States mail,
properly addressed, postage fully prepaid, for delivery by certified or registered mail, return
receipt requested. Notices given by personal delivery or facsimile shall be deemed effective
upon receipt (provided notice by facsimile is on a business day and receipt is acknowledged);
notices given by mail shall be deemed effective on the third business day after deposit.
Notices may be given at the following addresses and facsimile numbers, until further notice
by either party:
REAL ESTATE PURCHASE AND SALE AGREEMENT 12
If to Port: Port of Seattle
Real Estate Division
PO Box 1209
Seattle, WA 98111
Attn: Managing Director Real Estate Division
Facsimile: (206) 787-3280
With a copy to: Port of Seattle Legal Department
PO Box 1209
Seattle, WA 98111
Attn: General Counsel
Facsimile: (206) 787-3205
If to the County: Snohomish County
3000 Rockefeller Avenue
Administration Building West, 6th Floor
M/S407
Everett, WA 98201
Attn: Marcia Isenberg
Facsimile: (425) 388-3496
With a copy to: Snohomish County Prosecuting Attorney's Office
3000 Rockefeller Avenue
Robert Drewel Building, 8th Floor
M/S 504
Everett, WA 98201
Attn: Civil Division
Facsimile: (425) 388-6333
19. Miscellaneous.
19.1 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties concerning the subject matter hereof and any and all prior agreements,
understandings or representations with respect to its subject matter are hereby canceled in
their entirety and are of no further force or effect.
19.2 Governing Law. This Agreement shall be governed by and enforced
in accordance with the laws of the State of Washington. The venue of any action arising out
of this Agreement shall be in the Superior Court of the State of Washington, in and for
Snohomish County.
19.3 Interpretation. This Agreement and each of the terms and provisions
of it are deemed to have been explicitly negotiated by the parties, and the language in all
parts of this Agreement shall, in all cases, be construed according to its fair meaning and not
strictly for or against either of the parties hereto. The captions and headings in this
REAL ESTATE PURCHASE AND SALE AGREEMENT 13
Agreement are used only for convenience and are not intended to affect the interpretation of
the provisions of this Agreement. This Agreement shall be construed so that wherever
applicable the use of the singular number shall include the plural number, and vice versa, and
the use of any gender shall be applicable to all genders.
19.4 Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall, for any reason and to any extent, be found
invalid or unenforceable, the remainder of this Agreement and the application of that
provision to other persons or circumstances shall not be affected thereby, but shall instead
continue in full force and effect, to the extent permitted by law.
19.5 Legislative Approval. The parties' performances under this
Agreement are contingent on approval of this Agreement by each party's respective
legislative body and in accordance with applicable law.
19.6 Warranty of Authority. Each of the signatories hereto warrants and
represents that he or she is competent and authorized to enter into this Agreement on behalf
of the Party for whom he or she purports to sign this Agreement. Each person signing this
Agreement also represents and warrants that no other person's signature is needed in order (i)
for this Agreement to be binding on such Party, or (ii) to release the claims, demands,
actions, and causes of action that such Party is purporting to release.
19.7 Modification or Amendment. No amendment, change, or
modification of this Agreement shall be valid, unless in writing and signed by all of the
Parties hereto.
19.8 No Waiver. No term or condition of this Agreement will be deemed
to have been waived or amended unless expressed in writing, and the waiver of any condition
or the breach of any term will not be a waiver of any subsequent breach of the same or any
other term or condition.
19.9 No Third Party Beneficiaries. This Agreement is made for the
exclusive benefit of the Parties hereto. There are no third party beneficiaries to this
Agreement.
19.10 No Joint Venture. Nothing contained in this Agreement shall be
construed as creating any type or manner of partnership, joint venture or other joint
enterprise between the parties.
19.11 No Brokers. The Port and the County each hereby represents,
warrants to and agrees with the other that it has not had any contact or dealings regarding the
Property, or any communication in connection with the subject matter of this transaction,
through any licensed real estate broker or other person who can claim a right to a commission
or finder's fee as a procuring cause of the purchase and sale contemplated by this Agreement.
If any broker or finder perfects a claim for a commission or finder's fee based on any other
REAL ESTATE PURCHASE AND SALE AGREEMENT 14
contract, dealings or communication, the party through whom the broker or finder makes his
or her claim will be responsible for that commission or fee and shall indemnify, defend, and
hold harmless the other party from and against any liability, cost, or damages (including
attorneys' fees and costs) arising out of that claim. The provisions of this Section 19.11 shall
survive the Closing or earlier termination of this Agreement.
19.12 No Merger. The terms and provisions of this Agreement shall not
merge into, but shall survive, the Closing of the transaction contemplated by this Agreement
and the Deed to be delivered pursuant hereto.
19.13 Time of the Essence. Time is of the essence of each and every
provision of this Agreement. The Parties agree that strict compliance by both of them is
required with respect to any date set forth in this Agreement.
19.14 Exhibits. The following Exhibits, which are attached to this
Agreement, are incorporated herein and by this reference made a part of this Agreement:
EXHIBIT A - Legal Description of the Property
EXHIBIT B - Diagram Map Showing Property
EXHIBIT C - Schedule of Third Party Leases, Licenses and Contracts
EXHIBIT D - Form of Quit Claim Deed
EXHIBIT E - Form of Bill of Sale
EXHIBIT F - Form of Partial Assignment and Assumption of Operations and
Maintenance Agreement
EXHIBIT G - Form of Assignment and Assumption of Third Party Leases,
Licenses and Contracts
EXHIBIT H - Non-Foreign Person Affidavit
19.15 Computation of Time. Except where expressly provided to the
contrary, as used in this Agreement, the word "day" shall mean "calendar day," and the
computation of time shall include all Saturdays, Sundays, and holidays for purposes of
determining time periods specified in this Agreement. If the final date of any period of time
set out in any provision of this Agreement falls upon a Saturday or a Sunday or a legal
holiday, then in such event, the time of such period shall be extended to the next day that is
not a Saturday, Sunday or legal holiday. As used in this Agreement, the term "Business Day"
shall mean a day that is not a Saturday, Sunday, or a legal holiday.
19.16 Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original and all of which shall
constitute one and the same agreement.
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REAL ESTATE PURCHASE AND SALE AGREEMENT 15
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
PORT: COUNTY:
The Port of Seattle, a municipal Snohomish County, a political subdivision of
corporation of the State of Washington the State of Washington
By By
Name: Name:
Title: Title:
Approved as to Form:
______________________________
Deputy Prosecuting Attorney
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REAL ESTATE PURCHASE AND SALE AGREEMENT 16
EXHIBIT A
Legal Description of Property
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT A-1
Exhibit A Legal Description of Property
EXHIBIT B
Diagram Map Showing Property
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT B-1
Exhibit B Diagram Map Showing Property
EXHIBIT C
Schedule of Third Party Leases, Licenses, and Contracts
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT C-1
Exhibit C Schedule of Third Party Leases, Licenses, and Contracts
EXHIBIT D
Form of Quit Claim Deed
Return Address:
Snohomish County Property Manager
3000 Rockefeller Avenue
Mail Stop 404
Everett, WA 98201-4046
Document Title(s) (or transactions contained therein):
1. Quit Claim Deed
Reference Number(s) of Documents assigned or released: N/A
(on page of documents(s))
Grantor(s) (Last name first, then first name and initials):
1. The Port of Seattle, a municipal corporation of the State of Washington
Grantee(s) (Last name first, then first name and initials):
1. Snohomish County, a political subdivision of the State of Washington
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
Snohomish County: Ptn BNSF Railway Company's Snohomish to Woodinville,
Washington Branch Line right-of-way lying within the following:
SW Sec.18,T28N,R.6E; Lts. 4 & 5, Blk. 2, Snohomish City Eastern Part, Vol.
1, Pg. 7; Govt. Lts. 1 & 2 & NW , Sec.19,T28N,R6E; NE & SE ,
Sec.24,T28N,R5E; NE Sec.25,T28N,R5E; Govt. Lts. 1, 2, 3, 5 & 6 Sec.30,
T28N,R6E; Govt. Lts. 3, 4 & 8, SW & NW Sec.31,T28N,R6E; Lt. 139
Cathcart; Govt. Lts. 4, 5, 6 & 7 Sec.6,T27N,R6E; Govt. Lts. 1, 2, 3, & 4 & SW ,
Sec.7,T27N,R6E; Govt. Lts. 2, 3 & 4 & NW , Sec.18,T27N,R6E; Govt. Lts. 1
& 2 Sec.19,T27N,R6E; NE , Sec.12,T27N,R5E; NE , SW , & SE ,
Sec.24,T27N,R5E; NW & SW , Sec.25,T27N,R5E; Sec.26,T27N.R5E; and
SW , SE , & NE , Sec 34,T27N,R5E.
Assessor's Property Tax Parcel/Account Number
N/A
REAL ESTATE PURCHASE AND SALE AGREEMENT D-1
Exhibit D Form of Quit Claim Deed
QUIT CLAIM DEED
The Grantor, THE PORT OF SEATTLE, a municipal corporation of the State of
Washington, for and in consideration of Ten and 00/100 Dollars ($10.00) and other good
and valuable consideration paid in hand, hereby conveys and quitclaims to the Grantee,
SNOHOMISH COUNTY, a political subdivision of the State of Washington, certain real
property located in Snohomish County, Washington, as more fully described on
Exhibit A (the "Property"), subject to matters of record, and together with any interest
therein which the Grantor may hereafter acquire.
DATED ___________________________, 2016.
THE PORT OF SEATTLE, a municipal
corporation of the State of Washington
By
Name:
Title:
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REAL ESTATE PURCHASE AND SALE AGREEMENT D-2
Exhibit D Form of Quit Claim Deed
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this _____ day of _________________, 2016, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn,
personally appeared ______________________________________________, to me
known to be the person who signed as ______________________________ of THE
PORT OF SEATTLE, a municipal corporation of the State of Washington, that executed
the within and foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said municipal corporation for the uses and purposes therein
mentioned, and on oath stated that _______ was duly elected, qualified and acting as said
officer or member of the municipal corporation, and that _______ was authorized to
execute said instrument on behalf of said municipal corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
My appointment expires: .
REAL ESTATE PURCHASE AND SALE AGREEMENT D-3
Exhibit D Form of Quit Claim Deed
Exhibit A
to
Quit Claim Deed
Legal Description of the Property
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT D-4
Exhibit D Form of Quit Claim Deed
EXHIBIT E
Form of Bill of Sale
BILL OF SALE
THIS BILL OF SALE is made this ___ day of , 2016, by and
between the Port of Seattle, a municipal corporation of the State of Washington (the "Port")
and Snohomish County, a political subdivision of the State of Washington (the "County").
A. The Port and the County have entered into that certain Real Estate and
Purchase and Sale Agreement dated ________________, 2016 (the "Agreement"), pursuant to
which the Port has agreed to convey and quitclaim to the County and the County has agreed to
accept certain real property located in Snohomish County, Washington, as more particularly
described in the Agreement (the "Property").
B. The Property is improved with rail tracks and certain commercial and industrial
structures and fixtures associated with rail operations, including that certain bridge structure
over the Snohomish River connecting portions of the Property (the "Improvements").
C. Pursuant to the terms of the Agreement, the Port has executed and the County
has acknowledged that certain Quit Claim Deed dated of even date herewith pursuant to
which the Port has conveyed and quitclaimed and the County has accepted the Property.
D. In accordance with the terms of the Agreement, the Parties are entering into
this Bill of Sale for the transfer and conveyance of the Improvements.
NOW, THEREFORE, for and in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Port does by these presents convey, quitclaim, and deliver unto the County all of its right,
title, and interest, if any, in and to any personal property located on the Property together with
that certain bridge structure over the Snohomish River connecting portions of the Property
(the "Improvements").
TO HAVE AND TO HOLD the Improvements unto the County, its successors and
assigns, forever.
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REAL ESTATE PURCHASE AND SALE AGREEMENT E-1
Exhibit E Form of Bill of Sale
IN WITNESS WHEREOF, the Port and the County have executed this Bill of Sale as
of the day and year first above written.
PORT: COUNTY:
The Port of Seattle, Snohomish County,
a municipal corporation of the State of a political subdivision of the State of
Washington Washington
By By
Name: Name:
Title: Title:
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REAL ESTATE PURCHASE AND SALE AGREEMENT E-2
Exhibit E Form of Bill of Sale
EXHIBIT F
Form of Partial Assignment and Assumption of
Operations and Maintenance Agreement
PARTIAL ASSIGNMENT AND ASSUMPTION OF
OPERATIONS AND MAINTENANCE AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF OPERATIONS AND
MAINTENANCE AGREEMENT (this "Assignment") is executed on this ____ day of
__________, 2016, by and between the Port of Seattle, a municipal corporation of the State
of Washington ("Assignor"), and Snohomish County, a political subdivision of the State of
Washington ("Assignee").
RECITALS
A. Assignor and Assignee are parties to that certain Real Estate Purchase and
Sale Agreement dated as of , 2016 (the "Agreement"), pursuant to
which Assignor has agreed to sell and Assignee has agreed to buy the real property legally
described in Exhibit A of this Assignment (the "Property").
B. Assignor is a party to the Operations and Maintenance Agreement Between
Port of Seattle and GNP Rly, Inc. (the "O&M Agreement"), which sets forth the rights,
obligations, terms, and conditions for freight rail operations over the Woodinville
Subdivision. Attached hereto as Schedule 1 and incorporated herein by this reference is a true
and correct copy of the O&M Agreement.
C. Pursuant to the Agreement, Assignee wishes to succeed Assignor to all right,
title, and interest in and to the O&M Agreement so far as it applies to the Property, and
Assignor wishes to retain all right, title, and interest in and to the O&M Agreement so far as
it applies to the remainder of the Woodinville Subdivision.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and conditions contained in
this Assignment, the parties agree as follows:
1. Partial Assignment of O&M Agreement. Assignor hereby assigns and
transfers to Assignee all of Assignor's right, title, and interest in and to the O&M Agreement
to the extent that the O&M Agreement affects and applies to rail operations over the
Property. The Assignor shall retain all right, title, and interest in the O&M Agreement to the
extent it affects and applies to other real property and improvements outside the Property.
2. Partial Assumption of O&M Agreement. To the extent assigned as set
forth above, Assignee hereby assumes all of Assignor's duties and obligations under the
REAL ESTATE PURCHASE AND SALE AGREEMENT G-1
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
O&M Agreement arising and accruing from and after the date of this Assignment, and
Assignee further succeeds to the interests of Assignor under the O&M Agreement.
3. Indemnification.
3.1 Indemnification by Assignor. Assignor agrees to fully, completely,
and unconditionally indemnify and hold Assignee harmless from and against all claims,
losses, expenses, liabilities, damages, including without limitation, interest and penalties,
attorneys' fees, and all amounts paid in settlement of any claim, that may be asserted against
Assignee, or which Assignee may incur or suffer and that arise under the O&M Agreement
(i) prior to the date of closing of the transaction contemplated in the Agreement, or (ii) to the
extent the O&M Agreement affects and applies to real property and improvements outside
the Property.
3.2 Indemnification by Assignee. Assignee agrees to fully, completely
and unconditionally indemnify and hold Assignor harmless from and against all claims,
losses, expenses, liabilities, damages, including without limitation, interest and penalties,
attorneys' fees, and all amounts paid in settlement of any claim, that may be asserted against
Assignor, or which Assignor may incur or suffer and that arise under the O&M Agreement
(i) after the date of closing of the transaction contemplated in the Agreement, and (ii) to the
extent the O&M Agreement affects and applies to the Property.
4. Binding Effect. This Assignment shall be binding on and inure to the benefit
of the Assignor, Assignee, and their respective successors in interest and assigns.
5. Governing Law. This Assignment shall be construed and enforced in
accordance with the laws of the State of Washington. Venue for any action regarding this
Assignment shall be the Superior Court in and for Snohomish County.
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT G-2
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
The Port of Seattle, municipal corporation of the State
of Washington
By
Name:
Title:
ASSIGNEE:
SNOHOMISH COUNTY, a political subdivision of
the State of Washington
By
Name:
Title:
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT G-3
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this _____ day of _________________, 2016, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared ______________________________________________, to me known to be the
person who signed as ______________________________ of THE PORT OF SEATTLE, a
municipal corporation of the State of Washington, that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said company for the uses and purposes therein mentioned, and on oath stated that _______
was duly elected, qualified and acting as said officer or member of the municipal corporation,
and that _______ was authorized to execute said instrument on behalf of said municipal
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
My appointment expires: .
REAL ESTATE PURCHASE AND SALE AGREEMENT G-4
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
STATE OF WASHINGTON )
) ss.
COUNTY OF SNOHOMISH )
On this _____ day of _________________, 2016, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared ______________________________________________, to me known to be the
person who signed as ______________________________ of SNOHOMISH COUNTY, the
political subdivision of the State of Washington that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said company for the uses and purposes therein mentioned, and on oath stated that _______
was duly elected, qualified and acting as said officer or member of the county, and that
_______ was authorized to execute said instrument on behalf of said county.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
My appointment expires: .
REAL ESTATE PURCHASE AND SALE AGREEMENT G-5
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
Exhibit A
Legal Description of the Property
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT G-6
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
Schedule 1
to
Partial Assignment and Assumption of Operations and Maintenance Agreement
Operations and Maintenance Agreement Between Port of Seattle and GNP Rly, Inc.
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT G-7
Exhibit F Form of Partial Assignment and Assumption of Operations and Maintenance Agreement
EXHIBIT G
Form of Assignment and Assumption of
Third Party Leases, Licenses, and Contracts
ASSIGNMENT AND ASSUMPTION OF
THIRD PARTY LEASES, LICENSES, AND CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF THIRD PARTY LEASES,
LICENSES, AND CONTRACTS (this "Assignment") is executed on this ____ day of
__________, 2016, by and between the Port of Seattle, a municipal corporation of the State
of Washington ("Assignor"), and Snohomish County, a political subdivision of the State of
Washington ("Assignee").
RECITALS
A. Assignor and Assignee are parties to that certain Real Estate Purchase and
Sale Agreement dated as of , 2016 (the "Agreement"), pursuant to
which Assignor has agreed to sell and Assignee has agreed to buy the real property legally
described in Exhibit A of the Agreement (the "Property").
B. Assignor is a party to the Third Party Leases, Licenses, and Contracts as
defined and described in the Agreement and in the attached Schedule 1.
C. Pursuant to the Agreement, Assignor wishes to assign, and Assignee wishes to
assume, all of Assignor's right, title and interest in and to theThird Party Leases, Licenses,
and Contracts.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and conditions contained in
this Assignment, the parties agree as follows:
1. Assignment of Third Party Leases, Licenses, and Contracts. Assignor
hereby assigns and transfers to Assignee all of Assignor's right, title, and interest in and to
the Third Party Leases, Licenses, and Contracts identified in Schedule 1, attached hereto and
incorporated herein by this reference. If after the date of this Assignment the Parties discover
any additional Third Party Leases, Licenses, and Contracts encumbering the Property, each
shall reasonably cooperate with the other to assign such agreements consistent with the terms
of the Agreement and this Assignment.
2. Assumption of Third Party Leases, Licenses and Contracts. To the extent
assigned as set forth above, Assignee hereby assumes all of Assignor's duties and obligations
under the Third Party Leases, Licenses, and Contracts arising and accruing from and after the
date of this Assignment, and Assignee further succeeds to the interests of Assignor under the
REAL ESTATE PURCHASE AND SALE AGREEMENT H-1
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
Third Party Leases, Licenses, and Contracts.
3. Indemnification.
3.1 Indemnification by Assignor. Assignor agrees to fully, completely
and unconditionally indemnify and hold Assignee harmless from and against all claims,
losses, expenses, liabilities, damages, including without limitation, interest and penalties,
attorneys' fees, and all amounts paid in settlement of any claim, that may be asserted against
Assignee, or which Assignee may incur or suffer and that arise under a Third Party Lease,
License, or Contract prior to the date of closing of the transaction contemplated in the
Agreement.
3.2 Indemnification by Assignee. Assignee agrees to fully, completely
and unconditionally indemnify and hold Assignor harmless from and against all claims,
losses, expenses, liabilities, damages, including without limitation, interest and penalties,
attorneys' fees, and all amounts paid in settlement of any claim, that may be asserted against
Assignor, or which Assignor may incur or suffer and that arise under a Third Party Lease,
License, or Contract after the date of closing of the transaction contemplated in the
Agreement.
4. Binding Effect. This Assignment shall be binding on and inure to the benefit
of the Assignor, Assignee, and their respective successors in interest and assigns.
5. Governing Law. This Assignment shall be construed and enforced in
accordance with the laws of the State of Washington. Venue for any action regarding this
Assignment shall be the Superior Court in and for Snohomish County.
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT H-2
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
The Port of Seattle, municipal corporation of the State
of Washington
By
Name:
Title:
ASSIGNEE:
SNOHOMISH COUNTY, a political subdivision of
the State of Washington
By
Name:
Title:
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT H-3
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this _____ day of _________________, 2016, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared ______________________________________________, to me known to be the
person who signed as ______________________________ of THE PORT OF SEATTLE, a
municipal corporation of the State of Washington, that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said company for the uses and purposes therein mentioned, and on oath stated that _______
was duly elected, qualified and acting as said officer or member of the municipal corporation,
and that _______ was authorized to execute said instrument on behalf of said municipal
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
My appointment expires: .
REAL ESTATE PURCHASE AND SALE AGREEMENT H-4
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
STATE OF WASHINGTON )
) ss.
COUNTY OF SNOHOMISH )
On this _____ day of _________________, 2016, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared ______________________________________________, to me known to be the
person who signed as ______________________________ of SNOHOMISH COUNTY, the
political subdivision of the State of Washington that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said company for the uses and purposes therein mentioned, and on oath stated that _______
was duly elected, qualified and acting as said officer or member of the county, and that
_______ was authorized to execute said instrument on behalf of said county.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
My appointment expires: .
REAL ESTATE PURCHASE AND SALE AGREEMENT H-5
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
Schedule 1
to
Assignment and Assumption of Third Party Leases, Licenses, and Contracts
Schedule of Third Party Leases, Licenses, and Contracts
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT H-6
Exhibit G Form of Assignment and Assumption of Third Party Leases, Licenses, and Contracts
EXHIBIT H
Form of Non-Foreign Person Affidavit
NON-FOREIGN PERSON AFFIDAVIT
Under Section 1445 of the Internal Revenue Code of 1986, as amended (the "U.S.
Code"), a transferee of a United States real property interest must withhold tax if the transferor is
a foreign person. To inform SNOHOMISH COUNTY, a political subdivision of the State of
Washington, (the "Transferee"), that withholding of tax will not be required upon the transfer to
Transferee by THE PORT OF SEATTLE,a municipal corporation of the State of Washington
(the "Transferor"), of that certain real property located in the State of Washington and more
particularly described in Schedule 1 attached hereto (the "Property"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate, as those terms are defined in the U.S. Code and the Income Tax Regulations
promulgated thereunder;
2. Transferor is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of
the Income Tax Regulations; and
3. Transferor's U.S. employer identification number is ________________.
Transferor understands that this Certification may be disclosed to the Internal Revenue
Service and that any false statement contained herein could be punished by fine, imprisonment,
or both.
Transferor understands that Transferee is relying on this Certificate in determining
whether withholding is or will be required in connection with the transfer of the Property by
Transferor to Transferee, and that Transferee may face liabilities if any statement contained in
this certificate is false.
Transferor hereby indemnifies Transferee, and agrees to hold Transferee harmless, from
any liability or cost which such Transferee may incur as a result of: (i) the Transferor's failure to
pay any U.S. Federal Income tax which Transferor is required to pay under applicable federal
law or (ii) any false or misleading statement contained herein. Under penalties of perjury, I
declare that I have examined this Certification and to the best of my knowledge declare that I
have authority to sign this document on behalf of Transferor.
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT I-1
Exhibit H Form of Non-Foreign Person Affidavit
DATED , 2016.
TRANSFEROR:
THE PORT OF SEATTLE, a municipal corporation of
the State of Washington
By
Name:
Title:
[The remainder of this page is intentionally left blank.]
REAL ESTATE PURCHASE AND SALE AGREEMENT I-2
Exhibit H Form of Non-Foreign Person Affidavit
Schedule 1
to
Non-Foreign Person Affidavit
Legal Description of the Property Being Transferred
[See attached.]
REAL ESTATE PURCHASE AND SALE AGREEMENT I-3
Exhibit H Form of Non-Foreign Person Affidavit
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