PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered
into as of the day of , 2010, by and between Ash Grove Cement
Company, a Delaware corporation a ("Sellef) and the Port of Seattle, a Washington
municipal corporation ("Buyer"), with reference to the following facts:
A. The Buyer and City of Seattle Departmentof Transportation are co-leads
in the East Marginal Way Grade Separation Project ("Projectn)to enhance freight
connections that serve Harbor Island, West Seattle and the south Downtown industrial
area. The Project will construct a new overpass to route traffic up and over the existing
train tracks in that area. The elevated structure will connect three existing streets: South
Spokane Street, Duwamish Avenue South and East Marginal Way.
6. The Project will also include minor improvements at existing street
connections, realignment of a portion of South Spokane Street, and construction of a
new at-grade roadway under and west of the to-be-constructed elevated structure for
local access circulation. .
C. Once completed, the Project will bene.fit Buyer and the local economy
within the Port district by improving freight mobility and access to and from local
businesses, which include Buyer's tenants. The Project will also separate rail traffic from
vehicle traffic by eliminating several busy crossings, to improve safety and relieve
congestion.
D. Seller owns certain real property located at 3801 East Marginal Way
South, Seattle, WA 981034, in King County, Exhibit A. A portion of Seller's property is
necessary for the Project. That portion, which will hereafter be referred to as the Rightof-Way
Property consists of approximately 1,832 square feet and is legally described in
Exhibit 6 and depicted in Exhibit C.
E. Because possession of the Right-of-way Property was immediately
necessary for the Buyer to put the Project out to public bid, the Buyer and Seller
executed a Possession and Use Agreement on July 7,2009. Under the Possession and
Use Agreement, the Seller granted to Buyer immediate possession and use of the
Right-of-way Property so that Buyer could proceed with the Project while questions
concerning the impact of environmental issues on just compensation were being
resolved.
F. Pursuant to the Possession and Use Agreement, Buyer issued a check in
the amount of $64,200.00 to Seller.
G. Since the execution of the Possession and Use Agreement and payment
to Seller, the Buyer completed a Phase II Environmental Site Assessment for the Right-
of-Way Property. Low level TPH and other chemical contaminants were found in
shallow soil. The Buyer's consultant deemed the detected concentration as too low to
classify the soil as "Dangerous Waste" if excavated and disposed off-site. Based on the
results of the Phase II ESA, Buyer determined that there was nothing out of the ordinary
in the soil of the Right-of-way Property and that the planned work for the Project could
proceed with no special conditions for handling and disposal of materials removed from
the Project site during the course of the Project, other than their disposal at a Subtitle 0
landfill.
H. In projects that involve the construction of overpasses as well as changes to
the grade of exsting streets, the project owner typically will have contractors excavate
materials below the surface of the ground and replace those materials with crushed
gravel that meet the standards for certification of soil stability. Thus, regardless of
whether the soil materials contain low levels of contaminants or no contaminants, they
require disposal. The Buyer has determined that the additional cost to disposal of
certain materials at a Subtitle D landfill is likely to be minimal and should have little or no
impact on the just compensation for the Right-of-way Property. In making the
determination, the Buyer has considered the cost of condemnation litigation in the event
the parties cannot reach a negotiated agreement on just compensation and found that
the potential cost of such litigation significantly outweighs any additional cost of disposal
of certain materials at a Subtitle D landfill.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer agree as follows:
1. Property. Seller hereby agrees to sell and convey to Buyer, and Buyer
hereby agrees to purchase from Seller, subject to the terms and conditions set forth
herein, the following:
1.1 Land. That certain real property located in Seattle, King County,
Washington, consisting of approximately 1832 square feet of land and legally described
on Exhibit A attached hereto;
1.2 Appurtenances. All rights, privileges and easements appurtenant
to the Land (all of which are collectively referred to as the "Appurtenances");
1.3 Improvements. All improvements and fixtures, if any, located on
the Land (all of which are hereinafter collectively referred to as the "Improvements").
All of the items described in Paragraphs 1.1, 1.2 and 1.3 above are herein
collectively referred to as the "Riqht-of-Wav Property."
2. Purchase Price. The parties hereby acknowledge and agree that the
Possession and Use Deposit in the amount of Sixty-Four Thousand Two Hundred
Dollars ($64,200.00) previously paid by Buyer to Seller constitutes the full purchase
price for the Right-of-way Property.
3. Opening Escrow. Within five (5) business days following the execution
date of this Agreement, Buyer shall open escrow with Chicago Title Insurance Company
of Washington, Inc. (the "Escrow A~ent"),by depositing with Escrow Agent a copy of
this Agreement.
"Execution date" means the date on which the party that is the last to sign this
Agreement has signed it.
4. Closing Date. The closing (the "Closing") shall be held at the offices of
the Escrow Agent, on or before June 30, 2010 (the "Closing Date") unless otherwise
agreed in writing by the parties.
5. Title and Survey Matters.
5.1 Title Binder. Buyer has obtained a preliminary commitment and
supplemental report for an ALTA owner's standard coverage title insurance policy (title
order no.1242283, datedMay 28, 2009, as supplemented), issued by Chicago Title
Insurance Company ("Title Companv") describing the Right-of-way Property, showing
all matters pertaining to the Right-of-way Property and listing Buyer as the prospective
named insured. Following the mutual execution of this Agreement, Buyer may obtain
from Title Company at Buyer's sole cost additional written supplemental report to such
preliminary commitment, in a form acceptable to Buyer, updating the preliminary
commitment to the execution date of the Agreement. Such preliminary commitment,
supplemental reports and true, correct and legible copies of all documents referred to in
such preliminary commitment and supplemental reports as conditions or exceptions to
title to the Right-of-way Property are collectively referred to herein as the "Title Binder."
5.2 Title Review. During the Contingency Period (as defined below),
Buyer shall finish reviewing the Title Binder and any surveys of the Right-of-way
Property, and at least five (5) days before the expiration of the ~ontinqe~cyperiod,
Buyer shall notify Seller of what exceptions, to title, if any, will not be accepted by
Buyer. If Buyer fails to give Seller such notice at least five (5) days before the
expiration of the Contingency Period. Buyer shall be deemed to have accepted the title
as is. Seller shall have two (2) days after receipt of Buyer's notice of objections to give
Buyer notice of which exceptions, if any, Seller shall cause to be removed from title.
If Seller fails to give Buyer such notice before the expiration of the two (2)-day period,
("Seller's Notice Periodn) Seller shall be deemed to have elected not to cause such
objectionable exceptions to be removed from title. If Seller gives notice that it will not
remove any objectionable exceptionfrom title or shall be deemed to have elected not to
cause such objectionable exceptions to be removed from title, Buyer may terminate the
Agreement by giving written notice to Seller. Failure by Buyer to so terminate this
Agreement before the expiration of Contingency Period, shall be deemed as Buyer's
election to proceed with this transaction. Encumbrances to be discharged by Seller may
be paid out of the Purchase Price at Closing.
"Contingency Periodn means the period starting on the date of execution of this
Agreement and ending at 500 p.m. on the day which is two (2) business days before
the Closing Date.
The following shall be deemed "Permitted Exceptions":
(a) A 2008 easement granted to the City of Seattle for an aerial overhang
area (2,933 sf) in the Port of Lot 28, Block 378 of Seattle Tidelands, which lies within the
Right-of-Way Property. It is acknowledged by the parties that the 2008 easement
agreement also includes an easement for a utilities distribution area for a steel pole
(378 sf), but that the latter area lies outside the Right-of-Way Property..
(b) Covenants encumbering the Right-of-Way Property, executed in favor
of the City of Seattle, which were recorded in 2007 and 2008 under recording #s
20070806000208, 20081010000149, 20080317001626 and which bind owners, heirs,
successors and assigns to accept the risks, duties and indemnification obligations
imposed by the City because the Right-of-Way Property lies within a liquefaction-prone
area. Buyer hereby acknowledges that Buyer is informed that the Right-of-Way
Property lies in a liquefaction-prone area and informed of the risks associated with the
Right-of-Way Property and development on said property. Buyer further acknowledges
that Buyer has obtained copies of the above-referenced covenants.
(c) Any encumbrance which Buyer accepts or isdeemed to accept under the
above provisions of this Paragraph 5.2.
(d) The Possession and Use Agreement dated and effective July 7, 2009 (the
"Possession and UseAgreementn).
5.3 Title Policy. At Closing, Buyer shall cause Title Company to issue
an Owner's standard coverage title insurance policy ("Title Policy") to Buyer, at Buyer's
sole cost. The Title Policy shall insure Buyer against loss as a result of any liens,
encumbrances, or restrictions, subject to the Permitted Exceptions. The Title Policy
shall insure fee simple, indefeasible title to the Right-of-way Property in Buyer, subject
only to the Permitted Exceptions and contain endorsements as Buyer may reasonably
require. Buyer may elect to obtain an extended form of title insurance policy from the
Title Company, in which case Buyer shall pay the extra premium for such extended
coverage. Buyer's obligation to close this transaction shall be contingent on the
issuance of the Title Policy required under this Paragraph 5.
6. Conditions to Buyer's Obligations.
6.2 Inspection of the Property. Buyer acknowledges that its
employees, representatives, consultants andlor agents have inspected and completed
environmental due diligence with respect to the Right-of-Way Property.
6.3 Additional Closing Conditions. Buyer's obligation to purchase
the Right-of-Way Property shall also be subject to the following conditions that must be
satisfied as of the Closing Date:
(i) Prior to Closing, all Contracts (as defined below), if any, with
respect to the Property shall be terminated in writing.
(ii) All representations and warranties of Seller contained herein
shall be true, accurate and complete at the time of the Closing as if made again at such
tinie;
(iii) Seller shall have performed all obligations to be performed by it
hereunder on or before the Closing Date (or, if earlier, on or before the date set forth in
this Agreement for such performance);
(iv) Buyer, with cooperation of Seller, shall have submitted an
application to the City of Seattle for a lot boundary adjustment and obtained the City's
approval of same;
(v)At Closing, title to the Right-of-Way Property shall be in the
condition required by Paragraph 5 of this Agreement and Escrow Agent shall deliver the
Title Policy to Buyer; and
If the conditions set forth in this Paragraph 6 are not satisfied as of Closing and
Buyer does not waive the same, Buyer may terminate this Agreement, and thereafter
neither Buyer nor Seller shall have any further liability to the other under this
Agreement.
7. Seller's Representations and Warranties. Seller hereby makes the
following representations and warranties, which representations and warranties shall be
deemed made by Seller to Buyer also as of the Closing Date:
7.1 Title. Seller was the sole owner of the Right-of-Way Property prior
the effective date of the Possession and Use Agreement (i.e., July 7, 2009). At Closing,
Buyer will acquire the entire fee simple estate and right, title and interest in and to the
Right-of-Way Property via Seller's special warranty deed in substantially the same form
as attached hereto.
7.2 Compliance with Law. To the best of Seller's knowledge, during
the period Seller controlled the Right-of-Way Property and prior to Buyer assuming
control under the parties' Possession and Use Agreement (i.e., prior to July 7, 2009)'
the Right-of-Way Property complied in all material respects (both as to condition and
use) with all applicable statutes, ordinances, codes, rules and regulations of any
governmental authority having jurisdiction over the Right-of-Way Property. Seller has
no actual knowledge of any facts that might give rise to any violation of the foregoing
matters.
7.3 Bankruptcy. No bankruptcy, insolvency, rearrangement or similar
action involving Seller or the Right-of-Way Property, whether voluntary or involuntary, is
pending, threatened, by a third party, or contemplated by Seller.
7.4 Taxes and Assessments. [NOT USED]
7.5 Foreign Person. Seller is not a foreign person and is a "United
States Person" as such term is de,finedin Section 7701(a) (30) of the Internal Revenue
Code of 1986, as amended (the "Coden)and shall deliver to Buyer prior to the Closing
an affidavit evidencing such fad and such other documents as may be required under
the Code.
7.6 Tax Returns. Seller has filed all local, state and federal tax forms
that are required to be filed by Seller with respect to the Right-of-way Property, has
paid or made provision for payment of all taxes due and payable by Seller to date and
will pay all such taxes that become due and payable by Seller prior to the Closing.
7.7 Mechanics' Liens. No labor, material or services have been
furnished in, on or about the Right-of-Way Property or any part thereof as a result of
which any mechanics', laborer's or materialmen's liens or claims might arise during the
period of Seller's possession and control of the Right-of-way Property.
7.8 Leases and Other Agreements. Except as specifically disclosed
by Seller pursuant to this Agreement, Seller represents that there are no leases, service
agreements, licenses, easements, option agreements or other contracts (whether oral
or writing) (collectively, "Contractsn)in effed with respect to the Right-of-Way Property.
Seller further represents that there are no disputes or claims, or any set of facts known
to Seller that could lead to a dispute or a claim, under any Contracts. Seller shall
comply with the requirements of Section 6.3(i) with respect to any and all Contracts prior
to Closing.
7.9 Assumption of Liabilities. Buyer, by virtue of the purchase of the
Right-of-Way Property, will not be required to satisfy any obligations and liabilities
arising out of or by virtue of the Seller's ownership, possession or use of the Right-of-
Way Property prior to (a) the effective date of the parties' Possession and Use
Agreement and (b) the Closing Date and Seller shall indemnify, defend and hold Buyer
harmless therefrom. However, Buyer, will pay and discharge any and all liabilities of
each and every kind arising out of or by virtue of Buyer's possession, ownership or use
of the Right-of-Way Property from the effective date of the parties' Possession and Use
Agreement through and after the Closing Date, and shall indemnify, defend and hold
Seller harmless therefrom.
7.10 Defaults. Seller is not in default and there has occurred no
uncured event which, with notice, the passage of time or both would be a default, under
any contract, agreement, lease, encumbrance, or instrument pertaining to the Right-of-
Way Property.
7.11 Litigation. Other than the Lower Duwamish Waterway Super Fund
site matter, there is no litigation or threatened litigation which could now or in the future
in any way constitute a lien, claim, or obligation of any kind on the Right-of-way
Property, affect the use, ownership or operation of the Right-of-way Property or
otherwise adversely affect the Right-of-way Property. For purposes of this Paragraph
7.1 1, litigation includes lawsuits, actions, administrative proceedings, governmental
investigations and all other proceedings before any tribunal having jurisdiction over the
Right-of-Way Property.
7.12 Due Authority. Seller has all requisite power and authority to
execute and deliver this Agreement and to carry out its obligation hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents
contemplated hereby will be, duly executed and delivered by Seller and constitute the
Seller's legal, valid and binding obligation enforceable against Seller in accordance with
its terms. The consummation by Seller of the sale of the Right-of-way Property is not in
violation of or in conflict with nor does it constitute a default under any of the terms of
any agreement or instrument to which Seller is or may be bound, or of any provision of
any applicable law, ordinance, rule or regulation of any governmental authority or of any
provision of any applicable order, judgment or decree of any court, arbitrator or
governmental authority.
7.13 Finders' or Brokers' Fees. Seller has not dealt with any broker or
finder to which a commission or other fee is due in connection with any of the
transactions contemplated by this Agreement and insofar as it knows, no broker or other
person is entitled to any commission, charge or finder's fee in connection with the
transactions contemplated by this Agreement.
7.14 No Omissions. All representations and warranties made by Seller
in this Agreement, and all information contained in any certificate furnished by Seller to
Purchaser in connection with this transaction, are free from any untrue statement of
material fact and do not omit to state any material facts necessary to make the
statements contained herein or therein not misleading. The copies of any documents
furnished to Buyer in connection with this transaction are true and complete copies of
the documents they purport to be and contain no untrue statement of material fact and
do not omit to state any material facts necessary to make the statements contained
therein not misleading.
8. Covenants of Seller. Seller covenants and agrees as follows:
8.1 Perform Obligations. [NOT USED]
8.2 No Liens. From the date of this Agreement to the Closing Date,
Seller will not allow any lien to attach to the Right-of-way Property, nor will Seller grant,
create, or voluntarily allow the creating of, or amend, extend, modify or change, any
easement, right-of-way, encumbrance, restriction, covenant, lease, license, option or
other right affecting the Right-of-way Property or any part thereof without Buyer's
written consent first having been obtained.
8.3 Provide Further Information. From the date of this Agreement to
the Closing Date, Seller will notify Buyer of each event of which Seller becomes aware
which materially affects the Right-of-way Property or any part thereof promptly upon
learning of the occurrence of such event.
9. Closing.
9.1 Time and Place. Provided that all the contingencies set forth in
this Agreement have been previously fulfilled, the Closing shall take place at the place
and time determined as set forth in Paragraph 4 of this Agreement.
9.2 Documents to be Delivered by Seller. For and in consideration
of, and as a condition precedent to, the payment to Seller of any of the Purchase Price,
Seller shall obtain and deliver to Buyer at Closing the following documents (all of which
shall be duly executed and acknowledged where required):
(i) Special Warranty Deed. A special warranty deed ("Deedn)
in recordable form and otherwise substantially in form as the sample attached hereto as
Exhibit D as will convey to Buyer fee simple title at Closing.
(ii) Title Documents. Such other documents, including, without
limitation, lien waivers, indemnity bonds, indemnification agreements, and certificates of
good standing as shall be required by the Title Company as a condition to its insuring
Buyer's good and marketable fee simple title to the Right-of-way Property free of any
exceptions, other than the Permitted Exceptions.
(iii) Authority. Such evidence as the Title Company shall
require as to authority of Seller to convey the Right-of-way Property to Buyer.
9.3 Documents to be Delivered by Buyer. For and in consideration
of, and as a condition precedent to, Seller's conveyance of the Property, Buyer shall
deliver to Seller at Closing the following documents:
(i) Authority. Such evidence as the Title Company shall
require as to authority of Buyer to purchase the Right-of-Way Property from Seller.
9.5 Payment of Costs by Buyer. At Closing, Buyer shall pay the
premium for the Owner's Title Policy to be issued by Title Company to Buyer, the fee to
record the Deed, and closing costs, including the escrow fee. With respect to any and
all other costs incurred with respect to the consummation of the purchase and sale of
the Right-of-Way Property, Seller and Buyer shall pay their own respective costs. Seller
acknowledges that this transaction is subject to real estate excise tax from which the
Seller does not appear to be exempt under Chapter 82.45 RCW and Chapter 458-61A
WAC.
9.6 Assessments. Seller shall pay in full any assessments due or to
become due with respect to the Right-of-Way Property for the period up to July 7, 2009.
9.7 Monetary Liens. Seller shall pay or cause to be satisfied at or
prior to Closing all monetary liens on or with respect to the Right-of-Way Property,
including, but not limited to, mortgages, deeds of trust, security agreements,
assignments of leases, rents andlor easements, judgment liens, tax liens (other than
those for taxes not yet due and payable) and financing statements to the extent arising
out of Seller's acts prior to Closing but not due to Buyer's acts from July 7, 2009 through
Closing.
9.8 Possession. The parties acknowledge the Seller previously
granted to Buyer possession of the Right-of-Way Property. If any personal property
remains on the Right-of-Way Property at Closing, then Buyer may remove all such
personal property, except as otherwise permitted under the Lease.
10. Buyer's Representations and Warranties. Buyer hereby makes the
following representations and warranties, which representations and warranties shall be
deemed made by Buyer to Seller also as of the Closing Date:
10. Due Authority. Buyer has all requisite power and authority to
execute and deliver this Agreement and to carry out its obligation hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents
contemplated hereby will be, duly executed and delivered by Buyer and constitute
Buyer's legal, valid and binding obligation enforceable against Buyer in accordance with
its terms. The consummation by Buyer of the purchase of the Right-of-Way Property is
not in violation of or in conflict with nor does it constitute a default under any of the
terms of any agreement or instrument to which Buyer is or may be bound, or of any
provision of any applicable law, ordinance, rule or regulation of any governmental
authority or of any provision of any applicable order, judgment or decree of any court,
arbitrator or governmental authority.
10.2 Finders' or Brokers' Fees. Buyer has not dealt with any broker or
finder to which a commission or other fee is due in connection with any of the
transactions contemplated by this Agreement and insofar as it knows, no broker or other
person is entitled to any commission, charge or finder's fee in connection with the
transactions contemplated by this Agreement.
11. Sale of Property "As Is." Having fully inspected the Right-of-Way Property, and
having had the opportunity to obtain the report of professionals, Buyer agrees to accept
theRight-of-Way Property "As Is" with any and all defects. and assumes the risk of any
and all defects inthe condition of the Right-of-way Property. Buyer acknowledges and
agrees that Seller makes no representations or warranties of any kind concerning the
Right-of-Way Property (including the Right-of-Way Property's condition or suitability for
Buyer's intended use), except as specifically set forth
in Section 7.
12. Conditions to Seller's Obligations.
12.1 Seller's obligation to sell the Right-of-Way Property to Buyer shall
be subject to the following conditions that must be satisfied by the end of the
Contingency Period:
(v) Buyer and Seller have agreed on the form of the Deed (see
Exhibit D).
12.2 Seller's obligation to sell the Right-of-Way Property to Buyer shall
be subject to further conditions that must be satisfied at Closing:
(i) Buyer pays the fee to record the Deed, and the escrow fee.
(ii) Buyer delivers any other costs required by the terms of this
Agreement to be paid by or delivered by Buyer.
(iii) Seller shall have performed all obligations to be performed by it
hereunder on or before the Closing Date (or, if earlier, on or before the date set forth in
this Agreement for such performance)
If any of the conditions set forth in this Paragraph 12.2 are not satisfied as of
Closing and Seller does not waive the same, Seller may terminate this Agreement, and
thereafter neither Buyer nor Seller shall have any further liability to the other under this
Agreement.
13. Indemnification. Seller shall protect, and pay the defense costs of,
indemnify and hold Buyer and its successors and assigns harmless from and against
any and all loss, liability, claim, damage and expense suffered or incurred by reason of
(a)the breach of any representation, warranty, covenant or other agreement of Seller
set forth in this Agreement; or (b) the failure of Seller to perform any obligation required
by this Agreement to be performed by Seller.
Buyer shall pay, protect, and pay the defense costs of, indemnify and hold Seller
and its successors and assigns harmless from and against any and all loss, liability,
claim, damage and expense suffered or incurred by reason of (a) the breach of any
representation, warranty, covenant or other agreement of Buyer set forth in this
Agreement; or (b) the failure of Buyer to perform any obligation required by this
Agreement to be performed by Buyer.
14. Condemnation. In the event of any commenced, to be commenced or
consummated proceedings in eminent domain or condemnation (collectively
"Condemnation") respecting the Right-of-way Property or any portion thereof, on or
after the date of this Agreement and prior to the Closing, Buyer may elect, by written
notice to Seller, to terminate this Agreement and the escrow created pursuant hereto
and be relieved of its obligation to purchase the Right-of-way Property. If Buyer
terminates this Agreement neither Buyer nor Seller shall have any further liability to the
other hereunder. If Buyer fails to make such election prior to the Closing Date, this
Agreement shall continue in effect, there shall be no reduction in the Purchase Price,
and Seller shall, at the Closing,, assign to Buyer, by an assignment agreement in form
and substance satisfactory to Buyer, its entire right, title and interest in and to any
Condemnation award or settlement made or to be made in connection with such
Condemnation proceeding. Buyer shall have the right at all times to participate in all
negotiations and dealings with the condemning authority and approve or disapprove any
proposed settlement in respect to such matter. Seller shall forthwith notify Buyer in
writing of any such Condemnation respecting the Right-of-way Property.
15. Casualty. If any fire, windstorm or casualty occurs and materially affects
all or any portion of the Right-of-way Property on or after the date of this Agreement
and prior to the Closing, Buyer may elect, by written notice to Seller, to terminate this
Agreement and the escrow created pursuant hereto and be relieved of its obligation to
purchase the Property. If Buyer terminates this Agreement under this Paragraph 15,
neither Buyer nor Seller have any further liability to the other hereunder. If Buyer fails to
make such election prior to the Closing Date, this Agreement shall continue in effect,
the Purchase Price shall be reduced by the amount of loss or damage occasioned by
such casualty not covered by insurance, and Seller shall, at the Closing, assign to
Buyer, by an assignment agreement in form and substance satisfactory to Buyer, its
entire right, title and interest in and to all insurance claims and proceeds to which Seller
may be entitled in connection with such casualty. In the event Buyer's recovery of
proceeds from Seller's casualty insurance reduces the amount of any uninsured
casualty loss, Seller shall promptly pay such proceeds to Buyer. Buyer shall have the
right at all times to participate in all negotiations and other dealings with the insurance
carrier providing such coverage, and to approve or disapprove any proposed settlement
in respect to such matter. Seller shall promptly notify Buyer in writing of any such
casualty respecting the Right-of-way Property.
16. Notices. Unless applicable law requires a different method of giving
notice, any and all notices, demands or other communications required or desired to be
given hereunder by any party (individually, "noticen and collectively, "noticesn) shall be in
writing and shall be validly given or made to another party if delivered either personally
or by Federal Express or other overnight delivery service of recognized standing, or if
deposited in the United States mail, certified, registered, or express mail with postage
prepaid. If such notice is personally delivered, it shall be conclusively deemed given at
the time of such delivery. If such notice is delivered by Federal Express or other
overnight delivery service of recognized standing, it shall be deemed given twenty four
(24) hours after the deposit thereof with such delivery service. If such notice is mailed
as provided herein, such shall be deemed given forty eight (48) hours after the deposit
thereof in the United States mail. Each such notice shall be deemed given only if
properly addressed to the party to whom such notice is to be given as follows:
To Seller: Ash Grove Cement Company
1 1011 Cody Street
Overland Park, KS 66210
ATTN: Gary Church
With a copy to: NIA
To Buyer: Port of Seattle
PO Box 1209
Seattle, WA 981 11
Attn: Project Manager, East Marginal Way Grade
Separation Project
With a copy to: General Counsel
Port of Seattle
P.O. Box 1209
Seattle, WA 98111
Any party hereto may change its address for the purpose of receiving notices as herein
provided by a written notice given in the manner aforesaid to the other party hereto.
17. Event of Default. In the event of a default under this Agreement by either
party (including a breach of any representation, warranty or covenant set forth herein),
the injured party shall be enti,tled, in addition to all other remedies at law or equity, to
seek monetary damages and specific performance of the defaulting party's obligations
hereunder.
18. Miscellaneous.
18.1 Applicable Law. This Agreement shall in all respects, be
governed by 'thelaws of the State of Washington.
18.2 Further Assurances. Each of the parties shall execute and deliver
any and all additional papers, documents and other assurances, and shall do any and
all acts and things reasonably necessary in connection with the performance of its
obligations hereunder, to carry out the intent of the parties hereto.
18.3 Modification or Amendment, Waivers. No amendment, change
or modification of this Agreement shall be valid, unless in writing and signed by all of the
parties hereto. No waiver of any breach of any covenant or provision in this Agreement
shall be deemed a waiver of any preceding or succeeding breach thereof, or of any
other covenant or provision in this Agreement. No extension of time for performance of
any obligation or act shall be deemed an extension of the time for performance of any
other obligation or act.
18.4 Successors and Assigns. All of the terms and provisions
contained herein shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, legal representatives, successors and assigns.
18.5 Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to its subject matter 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. The
parties do not intend to confer any benefit under this Agreement to any person, firm or
corporation other than the parties.
18.6 Attorneys' Fees. Should either party bring suit to enforce this
Agreement, each party will pay its own attorneys' fees, costs and expenses.
18.7 Construction. Captions are solely for the convenience of the
parties and are not a part of this Agreement. This Agreement shall not be construed as
if it had been prepared by one of the parties, but rather as if both parties had prepared
it. If the date on which Buyer or Seller is required to take any action under the terms of
this Agreement is not a business day, the action shall be taken on the next succeeding
business day.
18.8 Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby; and each such term and provision of this
Agreement shall be valid and be enforced to the fullest extent permitted by law.
18.9 Survival. The covenants, agreements, representations and
warranties made in this Agreement shall survive the Closing unimpaired and shall not
merge into the Deed and the recordation 'thereof.
18.10 Time. Time is of the essence of every provision of this Agreement.
18.11 Force Majeure. Performance by Seller or Buyer of their
obligations under this Agreement shall be extended by the period of delay caused by
force majeure. Force majeure is war, natural catastrophe, strikes, walkouts or other
labor industrial disturbance, order of any government, court or regulatory body having
jurisdiction, shortages, blockade, embargo, riot, civil disorder, or any similar cause
beyond the reasonable control of the party who is obligated to render performance (but
excluding financial inability to perform, however caused).
18.12 Waiver; Succession. The waiver by Seller or Buyer of any
covenant, condition or agreement herein contained shall not vitiate the same or any
other covenant, condition or agreement contained herein and the terms, conditions,
covenants and agreements contained herein shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto.
18.13 Recording. The parties hereto agree that the Deed and all other
documents necessary to convey -titleto the Right-of-way Property from Seller to Buyer
shall be recorded in the records of King County by the Escrow Agent on the Closing
Date.
SELLER: Ash Grove Cement Company, a
Delaware corporation
Vice President
Date: - 5 , 2010
BUYER: PORT OF SEATTLE, a Washington
municipal corporation
BY
8ksrlecr6kddscr Ltdb 5tyrk
Managing Director, Seaport
Date: ,2010
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that -is the
person who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the Managing Director, Seaport Division of the Port of Seattle to be
the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated:
Notary Public
Print Name
My commission expires
I I
(Use this space for notary stamplseal)
STATE OF
K a ~ ~ ) SS.a s
COUNTY OF-K+N6- )
30hnrm
I certify that I know or have satisfactory evidence that Eileen Flink is the person
who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that. she was authorized to execute the instrument and
acknowledged it as a Vice President of Ash Grove Cement Company, to be the free and
voluntary a& of such party for the uses and purposes mentioned in the instrument.
Dated: 3an. \5 .ao\o
~ s G L c L h c h
Notary Public
IPrint ~ a m eWuss AS wt~ My commission expires \O - ~7-\\
A NOTARY PUBLlC State of Kansas
1
1 I
(Use this space for notary stamplseal)
EXHIBIT A
Lcpal Description of Ash Grove Cement Company Property
[See attachd]
LAND DESCRIPTION - EXlSrlNG
KlNG COUNTY PARCEL NO. 766670-0350
~,t(;ETtiEH WI TI1 1llE NOHTt-l ONE HALF OF THAI POHTION OF WEST DAKOTA STREET BOUNDED
ON THF EAST BY TtlE WESTERLY LINE: OF EAST MARGINAL WAY AS ESTABLISHED LJNOER
0RDINANCE NO 32881, AND ON Tl1E WEST BY THE CENTERLINE OF 8TH AVENUE SOUTt1WEST
(~IEHETOFOHEVACATED) AND ALL OF THE PORTION OF WEST DAKOTA STHEET DOUNDED ON TtiE
FAST BY TtiE CENTERLINE OF RTH AVENlJE SOLJ rl-lWEST (HERETOFORE VACATED) AND ON TtiE
WEST RY THE WEST LlNE OF LOT 24 BLOCK 387, SEATTLE TlDE LANDS, IN KlNG COUNTY,
WAS)iINGTON, I'RODUCED SOUTH TO THE NORTHWEST CORNER OF LOT 1, CALHOUN, DENNY &
WING'S REPLAT OF BLOCK 788, SEATTLE TlDE LANDS, ACCORDING TO THE PLAT RECORDED IN
VOLUME 12 OF PLATS, PACE (32, IN KING COUNTY, WAStilNGTON, SAlD DESCRIBED PORTIONS OF
WEST DAKOTA STREET HAVING IJEHETOFORE BEEN VACATED BY ORDINANCE NO 80964 OF THE
(:I N OF SEA TTLE
TOGETHERWITH t (ITS 1, 2.47 AND 48. CALHOUN. DENNY LL EWING'S REPLAT OF BLOCK 388,
SEATl'1.E TIDE LANDS, ACCORDING TO THE PLAT RECORDED IN VOLUME 12 OF PLATS, PAGE 92,IN
KING COIJNTY. WASH1NC;TON
T(JGikTt1EH WITtl Tt1E WEST HALF OF HTH AVENUE SOUTHWEST ADJOINING SAlD LOT 47 AND 48
AND TIiAT PORTION OF 9Tti AVENUE SOUTtiWEST BOUNOEO ON THE NORTH BY SOUTH LINE OF
WEST DAKOTA STREET AND ON THE SOUTH BY THE SOUTH LlNE OF SAlD LOT 2 PRODUCED EAST
I()TtiE SOIJTtiWEST CORNER OF SAID LOT 47. SAlD DESCRIBED PORTIONS OF 8TH AVENUE
i01JTIiWEST AND DTH AVENIJE SOUTt1WEST, tlAVING tiERETOFOHE BEEN VACATED BY
OHIJINANCE NO 16243 OF I HE CI IYOF smrr1.E
10C;t 1 tlFR 'C\rl TH TtlOSE PORTIONS OF LC17 S '3. 4, AND 46, CAL tIOIJN, DENNY 8 EWING'S KEPI AT Of:
[jl()(:r( IPH SEATTI t TlOC LANDS ANT) VACATI-D 9Tbi AVENIJE SOUTtiWEST DtSCl?lREDAS
I OLL()WS
Ilk r:INNINC; ,!r t\ 'rr'OINrON r t i tNOIiIt4 IINE OF 'SAID LOT 46 DISrANr 14 35 FEET LtEST
I ;K:M Tttt- -ASr I.lNt 'tikHtOF AS tS rFHL IStiED UY :;AID REPLAT PHOCF.E[) WEST ALONG
',;1110 FdOHTti L INF AND AS I'HODUCCD WEST A DISTAN(:E OF i30 25 FEET TO rtiE EAST IIPJE
c )F 1 Ijf F AST N Artf?\/VAY,TtiENCE SOUTH 8"23'41- WEST 4LONC3 SAlO EAST LlNE A
[JISTANC~O Ffi2 50 I-f-E T TO A 1'01NT DISTANT 1 83 f FEr SOUTH OF THE NORTH LINE OF
'ii\lD L OT 4, MEASURED AT I
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