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HomeMy WebLinkAboutR-2017-063 32 Acre Property Purchase Agreement with Congdon Development Company, LLCA RESOLUTION RESOLUTION NO. R-2017-063 authorizing the execution of an Agreement of Purchase and Sale between the City and Congdon Development Company, LLC to accomplish the City's purchase of 32 acres of Congdon property to complete the agreement with SOZO Sports of Central Washington to provide additional property supportive to the SOZO soccer complex and the public, all as set forth in the proposed Agreement between SOZO Sports of Central Washington and the City WHEREAS, by City Council's approval of Resolution R-2015-051 on April 7, 2015 SOZO and the City entered into a cooperative Agreement (No 2015-089) providing for the City's purchase of approximately 40 acres of property from Cleat City, LLC for the development and operation of the property as a premier soccer facility following a lease -back of the City's property to SOZO; and WHEREAS, at the time the City Council approved the expenditure of funds to support the SOZO soccer complex purchase and development the Council also voted to expend additional funds for the purchase of an additional property that would benefit and support the SOZO development plans and opportunity; and WHEREAS, the City also has entered into an agreement with the YMCA of Yakima to cooperatively develop an aquatic center on a portion of the City's Chesterley Park property; and WHEREAS, the YMCA agreement requires the City to exercise due diligence to provide replacement property for the Chesterley Park property proposed for use for the YMCA development in order to meet the City 's obligations to the State Recreation Conservation Office (RCO); and WHEREAS, the City and SOZO have determined that the 32 acre Congdon parcel will satisfy the purposes SOZO wishes to address for public opportunity adjacent to the soccer facility and will also be the best opportunity to provide an RCO replacement property that is required in the agreement with the YMCA, and WHEREAS, upon purchasing the Congdon property under the terms and conditions identified in the Purchase and Sale Agreement attached hereto and incorporated herein by this reference it is the City's intention to lease the Congdon property back to SOZO under the specific terms established in a Park and Recreation Facility Agreement with SOZO Sports wherein SOZO Sports will develop and maintain a public park on the Congdon property to benefit the residents of the City and others as well as to respond to the City's RCO exchange obligation for the Chesterley Park property conversion; and WHEREAS, the City has previously dedicated a maximum of $900,000 toward the purchase of the second parcel of property it agreed to provide for the SOZO development and the YMCA has committed to invest the balance of the property purchase price in the amount of $119,304 to meet the total appraised value and agreed upon purchase price of $1,019,304, as is reflected in the Purchase and Sale Agreement; and WHEREAS, the City Council determines that it is in the best interest of the City to purchase the Congdon Development Company, LLC property in accordance with the attached Agreement; the City Council has previously approved the purchase of an additional parcel to support the SOZO soccer development in an amount not to exceed $900,000, Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated Agreement of Purchase and Sale establishing the terms and conditions of the City's purchase of approximately thirty two acres of property from Congdon Development Company, LLC that will be developed and maintained by SOZO Sports of Central Washington as a Public Park and Recreation Area to benefit the residents of the City of Yakima and the SOZO soccer facility. ADOPTED BY THE CITY COUNCIL this 16th day of May, 2017 ATTEST Sonya Claklee, City Clerk` Ka y Coffe Mayo BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT 1 Item No. 12. For Meeting of: May 16, 2017 ITEM TITLE: Resolution authorizing purchase and sale of real property with Congdon Development Company, LLC for property to be developed by SOZO Sports of Central Washington into a public park and recreation area SUBMITTED BY: Jeff Cutter, City Attorney SUMMARY EXPLANATION: On April 7, 2015 the City entered into an Agreement with SOZO Sports of Central Washington for the cooperative development of approximately 58 acres of property into a premier soccer facility. The Agreement required the City to purchase approximately 40 acres of the 58 acre parcel. At the time the City Council approved the expenditures associated with the purchase of the 40 acre parcel and for development of that property into a soccer complex, the Council also committed another $900,000 toward the purchase of an additional parcel that would support the development goals of SOZO. Shortly after the Council made this commitment of future purchase the City entered into an Agreement with the YMCA of Yakima to cooperatively develop a portion of Chesterley Park into an aquatic facility. To accomplish that development the City is obligated to provide a replacement property suitable to the Washington Recreation Conservation Office (RCO) as a property sufficient to replace the public recreation land being utilized for development from Chesterley Park. To meet these two challenges the City has identified 32 acres immediately adjacent to the SOZO Sports Complex that can be developed into a Public Park and Recreation property, thereby meeting the needs of SOZO for support opportunities related to the soccer facility as well as providing the City's best due diligence effort at meeting its responsibility to the YMCA to provide an RCO replacement property for the Chesterley Park area planned for development. The 32 acre property identified to satisfy these joint purposes belongs to the Congdon Development Company, LLC and has been appraised at $1,019,304. The attached Purchase and Sale Agreement will accomplish the purchase of this 32 acre parcel which will then be leased to SOZO Sports of Central Washington. SOZO will develop and maintain the property as a Public Park and Recreation Area available to benefit the residents of Yakima as well as to support the SOZO Sports of Central Washington Soccer Complex. The development and maintenance of the property shall be accomplished under an Agreement with SOZO that specifies the terms and conditions of the development, maintenance and use of the property. 2 The attached Purchase and Sale Agreement includes water rights held under certificate by Congdon, as well as a Shared Well Agreement allowing the use of the Congdon well to deliver water to the property. The City also has the opportunity to seek a relocation of water rights from the 40 acre SOZO parcel the City owns south of the 32 acre parcel if water is needed form that source. This property purchase is intended to meet the City's commitment to SOZO Sports to acquire additional property to support the SOZO Sports Complex development as well as to provide the City's best opportunity to meet the RCO property replacement that is required of the City by the agreement with the YMCA for development of the aquatic center at Chesterley Park. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Partnership Development APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt resolution BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: Description D Resolution Upload Date 5/11/2017 D Qty and gdcn-Agreement of Purchase and Sale 5/11/2017 D Exhibits to Purchase and Sale Agreement 5/11/2017 Type Resolution Contract Exhibit AGREEMENT OF PURCHASE AND SALE THIS AGREEMENT OF PURCHASE AND SALE (hereafter "Agreement") is dated and effective as of May 17, 2017 (the "Effective Date"), and is made by and between THE CITY OF YAKIMA ("Buyer"), and Congdon Development Company, LLC, a Washington limited liability company ("Seller"). ARTICLE I PURCHASE AND SALE OF PROPERTY Section 1.1 Sale. Seller agrees to sell to Buyer/Purchaser, and Buyer/Purchaser agrees to purchase from Seller, on the terms and conditions set forth herein, that certain real property located at 2200 S. 36th Avenue, City of Yakima, County of Yakima, State of Washington, Yakima County parcel number 181334-42002, which real property is more particularly described in Exhibit A attached hereto ("Land "), together with: (a) any and all rights, privileges, water rights and easements appurtenant thereto; and (b) all of Seller's right, title and interest in and to (i) all permits, building plans and specifications, certificates of occupancy, operating permits, sign permits, development rights and approvals, certificates, licenses, warranties and guarantees, trade names, service marks, engineering, soils, pest control and other reports relating to the Land, (ii) all other intangible property, miscellaneous rights, benefits or privileges of any kind or character with respect to the Land (all items in this clause (b) are hereinafter collectively referred to as the "Intangible Property"). The Land, the Intangible Property and all other property rights and interests described in clause (a) above are hereinafter collectively referred to as the "Property." Section 1.2 Escrow. The transaction contemplated by this Agreement shall be consummated through an escrow with Pacific Alliance Title, LLC ("Title Company"), using the following address and escrow officer: Pacific Alliance Title, LLC 311 North 4th Street, Suite 102 Yakima, WA 98901 Attention: Kay Oliver Phone: (509) 225-6809 Section 1.3 Purchase Price. (a) The purchase price of the Property is $1,019,304 (the "Purchase Price"). (b) The Purchase Price shall be paid as follows: (1) Within three (3) business days after the Effective Date, Buyer shall deposit into escrow with Title Company the amount of Twenty -Five Thousand Dollars ($25,000.00) (the "Deposit"). The Deposit shall be held in an interest bearing account. Upon the expiration of the Contingency Period and Buyer's providing the Approval Notice (defined below) to Seller, the Deposit shall become non- refundable except as set forth in this Agreement. (2) (A) IF THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS CONSUMMATED. THEN THE DEPOSIT SHALL BE PAID TO SELLER AT THE CLOSING AND CREDITED AGAINST THE PURCHASE PRICE. 1 (B) IF THE SALE IS NOT CONSUMMATED DUE SOLELY TO A DEFAULT BY BUYER HEREUNDER, THEN SELLER, AS ITS SOLE REMEDY, SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLERS ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE SOLELY TO BUYER'S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER'S OBLIGATIONS UNDER SECTION 6.1 AND SECTION 9.3. INITIALS: SELLER kJ BUYER ( " (C) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO A DEFAULT OF SELLER, THEN BUYER MAY EITHER: (1) TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT AND RECOVER FROM SELLER ANY DAMAGES INCURRED BY BUYER AS A RESULT OF SUCH DEFAULT, IN WHICH EVENT BUYER SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTION 6.1 AND SECTION 9.3 BELOW, OR (2) BUYER MAY ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. THE FOREGOING IS NOT INTENDED TO LIMIT SELLERS OBLIGATIONS UNDER SECTION 6.1. at the Closing. (3) The balance of the Purchase Price, if any, shall be paid to Seller all in cash ARTICLE II CONDITIONS Section 2.1 Buyer's Conditions Precedent. Buyer's obligation to purchase the Property is specifically conditioned upon the following: (a) Buyer's review and approval of the Title Documents (as defined in Section 4.2). As soon as possible, but no later than five business days after the Effective Date, Seller shall deliver to Buyer: (i) a copy of the Title Documents, including any survey of the Property in Seller's possession; and (ii) a copy of Seller's existing ALTA survey, if any (the "Survey"). (b) Buyer's review and approval of the documents and information listed on Exhibit B hereto and all other documents and materials relating to the Property (the "Due Diligence Materials"), all of which Seller shall deliver to Buyer as soon as possible, but no later than five (5) business days after the Effective Date. (c) Buyer's review and approval of all zoning, land use, building, environmental and other statutes, rules or regulations applicable to the Property. (d) Buyer's review and approval of the physical, legal, economic and environmental condition of the Property together with any other matters Buyer deems relevant to the Property; 2 (e) (i) The irrevocable commitment of Title Company to issue the Title Policy (as hereinafter defined) to Buyer at Closing; and (ii) the issuance of the Title Policy at Closing. (f) All of the representations and warranties made by Seller to Buyer pursuant to this Agreement shall be true and correct in all material respects as of the Closing Date, as if made on such date. (g) No adverse change in the physical condition of the Property or in the permitted use or zoning of the Property, shall have occurred after the end of the Contingency Period. (h) Seller shall have delivered each of the documents described in Section 8.3(a), prior to the Closing Date. (i) Effective as of the Closing Date, Seller shall have terminated Contract(s), if any, that Buyer has not elected to assume pursuant to Section 7.4. (j) Prior to the end of the contingency period (as defined in Section 2.2) SOZO Sports of Central Washington shall enter into a Public Park and Recreation Facility Agreement with Buyer establishing SOZO's intent and obligation to lease the Property from Buyer no later than three (3) months from the closing date of Property purchase, and thereafter to develop the Property into a public park and recreation facility in accordance with approved design plans and terms of the SOZO Agreement. The Public Park and Recreation Facility Agreement, once executed by SOZO, must also be approved by the City of Yakima City Council in order to fully satisfy this condition precedent to Buyer's purchase of the Property. (k) Buyer and Seller shall enter into a Shared Well Agreement substantially similar to the agreement attached hereto as Exhibit F. The conditions precedent set forth in this Section 2.1 are solely for the benefit of Buyer and may be waived only by Buyer. Buyer's determination as to whether such conditions have been satisfied shall be made by Buyer in Buyer's sole, absolute and unfettered discretion. Buyer shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. No such waiver shall affect Buyer's ability to pursue any remedy it may have with respect to any breach hereunder by Seller. Section 2.2 Contingency Period. As used in this Agreement, the term "Contingency Period" means that period commencing on the Effective Date and ending on 5:00 p.m. Pacific Time on the date that is sixty (60) days after the later of the Effective Date or Buyer's receipt of all of the Due Diligence Materials. Buyer shall have until the end of the Contingency Period to review and approve the matters described in Section 2.1(b) through Section 2.1 (d) and including Section 2.1(k) above in Buyer's sole, absolute and unfettered discretion. Buyer shall have the right to terminate this Agreement prior to the expiration of the Contingency Period for any reason or no reason, as determined by Buyer in Buyer's sole, absolute and unfettered discretion, in which case the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in Section 6.1 and Section 9.3 below. If Buyer terminates this Agreement pursuant to the foregoing sentence, then Seller shall retain out of the Deposit, as independent consideration for Buyer's right to terminate this Agreement, the sum of one hundred dollars ($100.00). If Buyer determines to proceed with the purchase of the Property, then Buyer shall, before the end of the Contingency Period, notify Seller in writing (the "Approval Notice") that Buyer has approved all of the matters described in Section 2.1(b) through Section 2.1(d) and including 2.1(k) above, and also including, without limitation, the Due Diligence Materials. If, before the end of the Contingency Period, Buyer fails to give Seller an Approval Notice, then Buyer shall be deemed to have elected to terminate this Agreement, the Deposit shall be returned to Buyer 3 and neither party shall have any further rights or obligations hereunder except as provided in Section 6.1 and Section 9.3 below. If any other condition precedent set forth above is not satisfied as of the time specified for satisfaction, then Buyer may, by written notice given to Seller before the Closing or such other date specified for the satisfaction of such condition, elect to terminate this Agreement or waive such condition. If Buyer elects to terminate this Agreement (or is deemed to have elected to terminate this Agreement pursuant to a provision that states that Buyer's failure to approve a condition shall be deemed Buyer's disapproval of such condition), then Buyer shall receive a refund of the Deposit and neither party shall have any further rights or obligations hereunder except as provided in Section 6.1 and Section 9.3 below. Section 2.3 Seller's Condition Precedent. Seller's obligation to sell the Property is specifically conditioned upon the following: (a) Seller's confirmation prior to Closing that the Property will be continued as Open space land after Closing and reclassified under RCW 84.34.020(1) so that the transaction will not result in the imposition of additional tax under RCW 84.34.108. See, RCW 84.34.070(2)(a)(ii). ARTICLE III REPRESENTATIONS AND WARRANTIES Section 3.1 Seller's Representations and Warranties. Seller hereby makes the following representations and warranties to Buyer: (a) Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. (b) Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code") and any related regulations. (c) This Agreement has been duly authorized, executed and delivered by Seller, and neither the execution and delivery of this Agreement and the documents and instruments referenced herein, nor the performance of the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement and the documents and instruments referenced herein conflict with or result in the breach of any terms, conditions or provisions of, or constitute a default under, any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or instrument to which Seller is a party or affecting the Property. (d) Seller has the power and authority to enter into this Agreement and to perform its obligations hereunder. (e) There is no pending or, to the best of Seller's knowledge, threatened proceedings in eminent domain that would affect the Property or any portion thereof. 4 (f) There is no litigation, action, suit, arbitration, claims proceeding or governmental investigation in law or equity pending or, to the best of Seller's knowledge, threatened, with respect to the Property or against Seller that would prevent Seller from performing its obligations hereunder. (g) Except as stated below, Seller has received no written notice from any governmental authority and Seller has no knowledge that the present use and operation of the Property is in violation of any applicable law, including, without limitation, wetland regulations, building codes, zoning ordinances and any other laws relating to the use, ownership, construction or design of the improvements on the Property. (h) Seller has not been advised in writing of and is not otherwise aware of any plan, study or effort by any governmental agency or authority that would materially adversely affect the present use or zoning of any portion of the Property or that would materially modify or realign any adjacent street or highway. (i) To the best of Seller's knowledge, other than the amounts disclosed by the tax bills delivered or to be delivered by Seller to Buyer as part of the Due Diligence Materials, or supplemental taxes imposed as a result of the transfer of the Property to Buyer, no other taxes have been or will be assessed on the Property, or any portion thereof, with respect to the year in which the Closing Date occurs or any prior year, and no special assessments of any kind (special, bond or otherwise) are or have been levied against the Property, or any portion thereof. (j) To the best of Seller's knowledge, there are no underground or other storage tanks on the Property and there are no Hazardous Materials (as defined below) in existence on, under or about the Property in violation of any Environmental Laws (as defined below). For purposes of this Agreement, "Hazardous Materials" means inflammable materials, petroleum products, explosives, radioactive materials, asbestos, mold, polychlorinated biphenyls, lead, lead-based paint and any other substance or material that is listed in or regulated under any applicable federal, state or local laws pertaining to the protection of health or the environment, including, without limitation, the Federal Water Pollution Act, as amended (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801 et seq.), and the Model Toxics Control Act, as amended (Chapter 70.105D RCW) (collectively, "Environmental Laws"). (k) To the best of Seller's knowledge, all items delivered or to be delivered by Seller pursuant to this Agreement, including without limitation the Due Diligence Materials, are and will be true, correct and complete in all material respects and fairly present the information set forth in a manner that is not misleading. (1) Attached to this Agreement as Exhibit C is a true, correct and complete schedule of all of the contracts and agreements affecting the Property, if any (the "Contracts"). Each of the representations and warranties of Seller contained in this Section 3.1. (1) is true as of the Effective Date; (2) shall be deemed made by Seller, and shall be true in all material respects as of the date of Closing, and (3) shall survive the Closing as provided in Section 3.2 below. Section 3.2 Survival of Representations and Warranties. The representations and warranties of Seller and Buyer contained herein, and the parties' indemnification obligations contained in Section 3.6, shall survive for a period of twelve (12) months after 5 the Closing (the "Survival Period"). Any claim that Buyer or Seller may have at any time against the other for indemnification or a breach of any such representation or warranty, whether known or unknown, that is not asserted by written notice to the other within two months following the expiration of the Survival Period, and as to which a legal action has not been filed within five months following the Survival Period, shall be deemed waived, unless otherwise agreed in writing by the parties. Section 3.3 Seller's Knowledge. For purposes of this Agreement and any document delivered at Closing, whenever the phrase "to the best of Seller's knowledge" or the "knowledge" of Seller or words of similar import are used, they shall be deemed to refer to the actual knowledge of Seller and Seller's Manager's Chief Executive Officer and President, Gene R. Woodin, Jr., but not any implied, imputed or constructive knowledge; provided that the foregoing individual shall be charged with knowledge of information contained in Seller's files, and shall also make reasonable inquiries of other individuals who may possess material knowledge and/or have involvement with the operation and leasing of the Property. Seller represents and warrants to Buyer that the Seller and Gene R. Woodin, Jr. have primary responsibility for the management (including day-to-day management), oversight and operation of the Property. Section 3.4 Representations and Warranties of Buyer. Buyer hereby makes the following representations and warranties to Seller: (a) Buyer has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Buyer's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Buyer's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Buyer's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. (b) This Agreement has been duly authorized, executed and delivered by Buyer, and neither the execution and delivery of this Agreement and the documents and instruments referenced herein, nor the performance of the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement and the documents and instruments referenced herein conflict with or result in the breach of any terms, conditions or provisions of, or constitute a default under, any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or instrument to which Buyer is a party. (c) Buyer is a Washington municipal corporation duly formed, validly existing and in good standing under the laws of the State of Washington and has the power and authority to enter into this Agreement and to perform its obligation hereunder. Each of the representations and warranties of Buyer contained in this Section shall be deemed made by Buyer as of the Closing and shall survive the Closing, to the extent provided in Section 3.2 above. (d) Buyer acknowledges and agrees that it has been given or shall be given before the end of the Contingency Period, a full opportunity to inspect and investigate each and every aspect of the Property, either independently or through agents of Buyer's choosing. ARTICLE IV TITLE 6 Section 4.1 Conditions of Title. At the Closing, Seller shall convey title to the Property to Buyer by statutory warranty deed (the "Deed") subject to no exceptions other than: (a) Non -delinquent liens for real estate taxes and assessments; and (b) Any exceptions disclosed by Title Documents and approved by Buyer in writing pursuant to Section 4.2. All of the foregoing exceptions shall be referred to collectively as the "Approved Conditions of Title." Notwithstanding anything to the contrary contained in this Agreement, Buyer hereby disapproves all liens evidencing secured monetary encumbrances (other than liens for non -delinquent real estate property taxes and assessments) and Seller agrees to cause all such liens to be eliminated at Seller's sole cost and expense (including all prepayment penalties and charges, if any) prior to or concurrently with the Closing. Section 4.2 Title Review. Buyer shall have the right to approve any and all matters of and exceptions to title of the Property, as disclosed by the following documents and instruments (collectively, "Title Documents"): (i) a preliminary title report ("Preliminary Report") issued by Title Company with respect to the Property and all matters referenced therein; (ii) legible copies of all documents, whether recorded or unrecorded, referred to in such Preliminary Report; and (iii) an updated survey of the Property. Buyer shall, not later than fifteen (15) business days following Buyer's receipt of the Title Documents ("Title Review Period"), give Seller written notice ("Buyer's Title Notice") of Buyer's approval or disapproval, which shall be made in Buyer's sole and absolute discretion, of the legal description and every item or exception disclosed by the Title Documents. The failure of Buyer to give Buyer's Title Notice to Seller prior to the expiration of the Title Review Period shall be deemed Buyer's disapproval of title to the Property. If Buyer disapproves of any matter of title shown in the Title Documents, Seller shall, within three (3) days after Buyer's Title Notice is received by Seller, give Buyer written notice (the "Seller's Response") of those disapproved title matters, if any, that Seller is unable or unwilling to have eliminated from title to the Property as of the Closing. Seller's failure to timely give a Seller's Response shall be deemed Seller's agreement not to remove or to cause to be removed any disapproved title matters identified in Buyer's Title Notice. If Seller notifies Buyer within the time provided above that Seller is unable or unwilling to remove any of the title matters objected to by Buyer in Buyer's Title Notice, Buyer shall have until the date that is three (3) days after receipt of Seller's Response to notify Seller in writing that either (1) Buyer is willing to purchase the Property subject to such disapproved exceptions, or (2) Buyer elects to cancel this transaction. Failure of Buyer to take either one of the actions described in clauses (1) or (2) above shall be deemed to be Buyer's election to take the action described in clause (2) above, in which case the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder, except as provided in Section 6.1 and Section 9.3 hereof. If Seller agrees to remove any disapproved title matters, then Seller shall remove them prior to the Closing. Seller covenants that, after the Title Review Period, Seller shall not cause title to the Property to differ from the Approved Conditions of Title. Any liens, encumbrances, encroachments, easements, restrictions, conditions, covenants, rights, rights-of-way or other matters affecting the Approved Conditions of Title that may appear of record or be revealed after the Title Review Period, shall also be subject to Buyer's approval as a condition to the Closing for Buyer's benefit. Section 4.3 Evidence of Title. 7 Delivery of title in accordance with the foregoing shall be evidenced by the irrevocable commitment of Title Company to issue, at Closing, its Owner's ALTA Extended Coverage Policy of Title Insurance in the amount of the Purchase Price showing title to the Real Property vested in Buyer, and insuring all appurtenant easements, subject only to the Approved Conditions of Title and with such endorsements as may be requested by Buyer (the "Title Policy"). ARTICLE V RISK OF LOSS AND INSURANCE PROCEEDS Section 5.1 Minor Loss. Buyer shall be bound to purchase the Property for the full Purchase Price as required by the terms hereof, without regard to the occurrence or effect of any damage to the Property or condemnation of any portion of the Property, provided that: (a) the cost to repair any such damage or the diminution in the value of the remaining Property as a result of a partial condemnation, does not exceed Ten Thousand Dollars ($10,000.00) and (b) upon the Closing, there shall be a credit against the cash portion of the Purchase Price due hereunder in an amount equal to the amount of any insurance proceeds or condemnation awards collected by Seller as a result of any such damage or condemnation, plus the amount of any insurance deductible, less any sums expended by Seller toward the restoration of the Property, plus any additional funds needed to fully restore the Property. If the proceeds or awards have not been collected as of the Closing, then such proceeds or awards shall be assigned to Buyer, except to the extent needed to reimburse Seller for any sums expended by Seller toward the restoration of the Property. Buyer shall have the right to participate in any adjustment of the insurance claim. Section 5.2 Major Loss. If the amount of the damage or destruction or condemnation as specified above exceeds Ten Thousand Dollars ($10,000.00), then Buyer may, at its option to be exercised within ten (10) business days of Seller's notice of the occurrence of the damage or the commencement of condemnation proceedings, either terminate this Agreement or consummate the purchase for the full Purchase Price as required by the terms hereof. If Buyer elects to terminate this Agreement or fails to give Seller notice within such ten business day period that Buyer will proceed with the purchase, then the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in Section 6.1 and Section 9.3 . If Buyer elects to proceed with the purchase, then upon the Closing, there shall be a credit against the Purchase Price due hereunder in an amount equal to the amount of any insurance proceeds or condemnation awards collected by Seller as a result of any such damage or condemnation (or, if uninsured, a credit in the amount of the cost of repair), plus the amount of any insurance deductible, less any sums expended by Seller toward the restoration of the Property, plus any additional funds needed to fully restore the Property. If the proceeds or awards have not been collected as of the Closing, then such proceeds or awards shall be assigned to Buyer, except to the extent needed to reimburse Seller for any sums expended by Seller toward the restoration of the Property. Buyer shall have the right to participate in any adjustment of the insurance claim. Section 5.3 Uninsured Casualty. Without limiting Buyer's right to terminate this Agreement as provided in Section 5.2, if a casualty is uninsured, the Purchase Price shall be reduced by the full amount of the cost to perform the restoration of the Property, less any sums expended by Seller toward the restoration of the Property; provided, however, that if the amount of any uninsured damage of the Property is in excess of Ten Thousand Dollars ($10,000.00), then Seller may, at its option to be exercised within ten (10) business days after the occurrence 8 of the damage, elect to terminate this Agreement by giving written notice of such election to Buyer within that ten day period, in which case the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in Section 6.1 and Section 9.3. ARTICLE VI BROKERS AND EXPENSES Section 6.1 Brokers. The parties represent and warrant to each other that no broker or finder was instrumental in arranging or bringing about this transaction. If any person brings a claim for a commission or finder's fee based upon any contact, dealings or communication with Buyer or Seller, then the party through whom such person makes his claim shall defend the other party (the "Indemnified Party") from such claim, and shall indemnify the Indemnified Party and hold the Indemnified Party harmless from any and all costs, damages, claims, liabilities or expenses (including without limitation, reasonable attorneys' fees and disbursements) incurred by the Indemnified Party in defending against the claim. The provisions of this Section 6.1 shall survive the Closing or, if the purchase and sale is not consummated, any termination of this Agreement. ARTICLE VII SELLER'S COVENANTS Section 7.1 New Agreements Affecting the Property. Between the Effective Date and the Closing, Seller shall not enter into any contract or other agreement affecting the Property, or modify, amend or terminate any agreement affecting the Property, without first notifying Buyer and without obtaining Buyer's prior written approval, which may be given or withheld in Buyer's sole discretion. In connection with a request for Buyer's approval of such action, Seller shall provide Buyer with information about the proposed form of agreement and such other information as Buyer shall reasonably request. Buyer shall respond to any request for approval within three (3) business days after receipt of a request therefor from Seller. Section 7.2 Operation of the Property. Between the Effective Date and the Closing, Seller (a) shall maintain the Property in a manner consistent with past practices and in accordance with Seller's normal course of operation, (b) shall maintain reasonable and customary levels and coverages of insurance, (c) shall not create or acquiesce in the creation of liens or exceptions to title other than the Approved Conditions of Title, and (d) shall not take or permit to be taken any action that would render any of the representations or warranties of Seller set forth in this Agreement incorrect or untrue as of the Closing. Section 7.3 Termination of Contracts. During the Contingency Period, Buyer shall provide Seller with written notice identifying the Contracts that Buyer elects to assume at Closing, if any. If Buyer fails to provide such written notice to Seller with respect to any Contract, Buyer shall be deemed to have elected not to assume such Contracts. Seller shall terminate any Contract not to be assumed by Buyer pursuant to this Section 7.3 and shall pay 9 any fees or penalties payable with respect to the termination of such property management agreement or Contracts. ARTICLE VIII CLOSING AND ESCROW Section 8.1 Escrow Instructions. Upon execution of this Agreement, the parties hereto shall deposit an executed counterpart of this Agreement with Title Company, and this instrument shall serve as the instructions to Title Company as the escrow holder for consummation of the purchase and sale contemplated hereby, as may be supplemented by separate instructions that are consistent with this Agreement. Seller and Buyer agree to execute such reasonable additional and supplementary escrow instructions as may be appropriate to enable Title Company to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control. Section 8.2 Closing. The Closing hereunder shall be held, and delivery of all items to be made at the Closing under the terms of this Agreement shall be made, at the offices of Title Company on that date (the "Closing Date") that is fifteen (15) days after the last day of the Contingency Period. Section 8.3 Deposit of Documents. (a) At or before the Closing, Seller shall deposit into escrow the following items: (1) the duly executed and notarized Deed in the form attached hereto as Exhibit D, conveying the Property to Buyer; (2) two duly executed counterparts of an Assignment of Contracts, Warranties and Intangible Property in the form attached hereto as Exhibit E (the "Assignment"); (3) an affidavit pursuant to Section 1445(b)(2) of the Federal Code, and on which Buyer is entitled to rely, that Seller is not a "foreign person" within the meaning of Section 1445(1)(3) of the Federal Code; (4) such other authorizations, documents and information as may be reasonably required by Title Company to consummate the transaction contemplated herein, including, without limitation, any affidavits that Title Company may require in order to remove exceptions contained in the ALTA Title Policy, such as those regarding bankruptcy matters. (b) At or before Closing, Buyer shall deposit into escrow the following items: (1) funds necessary to close this transaction; and 10 (2) two duly executed counterparts of the Assignment. (c) Seller and Buyer shall each deposit such other instruments as are reasonably required by Title Company or otherwise required to close the escrow and consummate the acquisition of the Property in accordance with the terms hereof. Seller and Buyer hereby designate Title Company as the "Reporting Person" for the transaction pursuant to Section 6045(e) of the Internal Revenue Code and the regulations promulgated thereunder and agree to execute such documentation as is reasonably necessary to effectuate such designation. (d) Contracts to be assumed by Buyer pursuant to this Agreement and the Assignment, booklets, manuals, warranties and other documents relating to the Property or any part thereof, copies or originals of all the tenant correspondence files and originals of any other items that Seller was required to furnish Buyer copies of or make available pursuant to Section 2.1 above. Section 8.4 Prorations, Closing Costs, and Property Taxes. (a) The following shall be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365 -day year: applicable real property taxes and assessments; all utility charges; amounts payable under any contracts; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the maintenance of the Property. Buyer shall cause all utilities to be transferred to Buyer's name at Closing and shall post all required deposits in connection therewith, and Seller shall be responsible for obtaining refunds of any deposits it may have with utility companies. Buyer and Seller shall cooperate to produce prior to the Closing Date a schedule of prorations to be made on and after the Closing Date as complete and accurate as reasonably possible. All prorations that can be liquidated accurately or reasonably estimated as of the Closing Date shall be made in escrow on the Closing Date. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, or if there are any adjustments to initially estimated prorations, then the same shall be calculated or adjusted as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent prorations or credits shall promptly pay said sum to the other party. (b) Seller shall pay: (i) all of the excise tax applicable to the sales price of the Property; (ii) all applicable transfer taxes; (iii) the portion of the premium for the Title Policy that is allocable to standard coverage; and (iv) one-half of the escrow fees. Buyer shall pay: (i) the portion of the premium for the Title Policy that is allocable to extended coverage and the cost of any endorsements thereto; and (ii) one-half of the escrow fee. Any other expenses of the escrow for the sale shall be paid by Buyer and Seller in accordance with customary practice as determined by Title Company. Each party shall bear its own legal fees and due diligence costs in connection with the sale. (c) Because the Property is being sold conditioned upon Buyer's requirement that it be developed into a public park and recreation facility and Seller's requirement that it qualify for reclassification pursuant to RCW 84.34.070(2)(a)(ii), Buyer agrees to execute whatever documents as may be customary and necessary at Closing to reflect the Property's continuation as Open space land. (d) The provisions of this Section 8.5 shall survive the Closing. Section 9.1 Notices. ARTICLE IX MISCELLANEOUS 11 Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail (postage prepaid, return receipt requested), (c) by a commercial overnight courier that guarantees next day delivery and provides a receipt, (d) by fax with confirmation of receipt, or (e) by email. Notices shall be addressed as follows: To Buyer: with a copy to: To Seller: with a copy to: City of Yakima 129 North 2nd Street Yakima, WA 98901 Attention: Cliff Moore Fax: (509) 575-6335 Email: clif£moore@yakimawa.gov City of Yakima Legal Department 200 South 3rd Street Yakima, WA 98901 Attention: Jeff Cutter Fax: (509) 575-6160 Email: jeff.cutter@yakimawa.gov Congdon Development Company, LLC 1117 South 64th Avenue Yakima, WA 98907 Attention: Gene R. Woodin, Jr., President and CEO of Congdon orchards, Inc., General Manager of Congdon Development Co. Fax: (509) 965-2886 Email: dick@congdonorchards.com Mike Shinn Halverson Northwest Law Grp 405 East Lincoln Avenue Yakima, WA 98901 Fax: (509) 248-6030 Email: mshinn@halversonnw.com or to such other address as either party may from time to time specify in writing to the other party, in accordance with this section. Notices delivered in person, by certified mail or by a courier shall be effective upon delivery or refusal to accept delivery. Notices sent by fax shall be effective upon the date of transmission as shown by the sending party's fax machine. Notices sent by email shall be effective upon the date of transmission as shown by the sending party's email program. Section 9.2 Entire Agreement. This Agreement, together with the Exhibits hereto, contains all representations, warranties and covenants made by Buyer and Seller and constitutes the entire understanding between the parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda or agreements are replaced in total by this Agreement together with the Exhibits hereto. Section 9.3 Entry and Indemnity. 12 During the Contingency Period, and thereafter until the Closing if Buyer elects to proceed with the purchase after the end of the Contingency Period, Seller shall provide Buyer with full access to the Property, and the records of Seller relating thereto. Buyer shall have the right to perform and conduct all surveys, tests and studies that Buyer deems appropriate in its evaluation of the Property. In connection with any entry onto the Property prior to Closing by Buyer, or its agents, employees or contractors, Buyer shall give Seller reasonable advance notice of such entry. Buyer's contractors entering onto the Property shall maintain commercial general liability insurance in amounts adequate to insure against all liability of such contractors arising out of any entry onto or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller (including certificates of insurance showing Seller as an additional insured). Buyer shall indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees), arising out of or relating to any entry on the Property by Buyer, its agents, employees or contractors in the course of performing the inspections, testing or inquiries provided for in this Agreement. The foregoing indemnity shall not extend to any diminution in value of the Property arising from the discovery or reporting of adverse information concerning the Property. The foregoing indemnity shall survive beyond the Closing or, if the sale is not consummated, beyond the termination of this Agreement. herein. Section 9.4 Time. Time is of the essence in the performance of each of the parties' respective obligations contained Section 9.5 Attorneys' Fees. If either party hereto fails to perform any of its obligations under this Agreement or if any dispute arises between the parties hereto concerning the meaning or interpretation of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements, reasonable costs and attorneys' fees incurred in collecting any judgment or award resulting from such dispute, if any. Section 9.6 Assignment. Subject to Section 9.13, neither party may assign its rights and obligations hereunder without the prior written consent of the other party. Section 9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Counterpart signature pages may be detached from separately delivered counterparts of this Agreement and attached to other, identical counterparts of this Agreement, or to a version of this Agreement that is identical to that from which the signature page was detached, in order to create a fully executed original version of this Agreement. Faxed and emailed signature pages shall be deemed originals for all purposes. Section 9.8 Governing Law and Venue. 13 This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for the resolution of any disputes arising from this Agreement shall be determined in a court of competent jurisdiction in Yakima County, Washington. Section 9.9 Interpretation of Agreement. The article, section and other headings of this Agreement are for convenience of reference only and shall not be construed to affect the meaning of any provision contained herein. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter. The term "person" shall include any individual, partnership, joint venture, corporation, trust, unincorporated association, any other entity and any government or any department or agency thereof, whether acting in an individual, fiduciary or other capacity. The term "business days" means Monday through Friday, but excluding State and Federal holidays. If the end of the Contingency Period, the Closing Date or any other deadline under this Agreement falls on a day that is not a business day, then such date or deadline shall be moved to the next following business day. Unless otherwise provided, the term "including" is used in its inclusive sense, and not in limitation, regardless of whether the words "without limitation" (or words of similar import) are used. Seller Section 9.10 Amendments. This Agreement may be amended or modified only by a written instrument signed by Buyer and Section 9.11 No Partnership. The relationship of the parties hereto is solely that of seller and buyer with respect to the Property and no joint venture or other partnership exists between the parties hereto. Neither party has any fiduciary relationship hereunder to the other. Section 9.12 No Third Party Beneficiary. The provisions of this Agreement are not intended to benefit any third parties. Section 9.13 Cooperation in Exchange. The parties acknowledge and agree that either party may assign its interest in this Agreement to an exchange facilitator for the purpose of completing an exchange of the Property in a transaction which will qualify for treatment as a tax deferred exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code of 1986 and applicable state revenue and taxation code sections (a "1031 Exchange"). The parties agree to cooperate with one another in implementing any such assignment and 1031 Exchange, provided that such cooperation shall not entail any additional expense or cause any liability whatsoever beyond the cooperating party's existing obligations under this Agreement. An assignment to an exchange facilitator shall not relieve the assigning party from any of its obligations hereunder or entitle the assigning party to extend the Closing Date, nor shall the ability to consummate a 1031 Exchange be a condition to the performance of the obligations under this Agreement by the party seeking to achieve a 1031 Exchange. Any party requesting the cooperation of the other party in any such 1031 Exchange shall save, protect, defend, indemnify and hold the other party harmless from any and all costs, losses, claims, liabilities, causes of action, fines, penalties and other expenses (including, without limitation, reasonable attorneys' fees and court costs and fees of experts) incurred by such cooperating party as a result of such cooperation. 14 The parties hereto have executed this Agreement as of date set forth in the first paragraph of this Agreement. SELLER: CONGDON DEVELOPMENT COMPANY, LLC, a Washington limited liability company By: Congdon Orchards, Inc., Manager By: Gene R. Woodin, Jr. President and CEO BUYER: CITY OF YAKIMA, a municipal Corporation of the State of Washington By: C G:\MFS\CONGDON ORCHARDS, INC -02100\SOZO-City of Yakima Property\Purchase and Sale Agreement docx 15 Cliff More City Manager crrr CONTRACT NO: O / 7- O50 - I RESOLUTION N0: ' -Doi 7-1'2113 LIST OF EXHIBITS Exhibit A Real Property Description Exhibit B Due Diligence Materials Exhibit C Schedule of Contracts, if any Exhibit D Form of Deed Exhibit E Form of Assignment of Contracts, Warranties and Intangible Property Exhibit F Shared Well Agreement EXHIBIT A REAL PROPERTY DESCRIPTION The Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W M.; EXCEPT beginning at the Northwest corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; thence Easterly along the North line of said subdivision 1,320 feet, more or less, to the Northeast corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; thence Southerly along the Easterly line of said subdivision 511.03 feet; thence North 70° 03' West 1,402.4 feet, more or less, to the Westerly line of said subdivision; thence Northerly along the Westerly line of said subdivision 37.1 feet, more or less, to the point of beginning; AND EXCEPT that part lying within the County Road, along the North and East sides. Situated in Yakima County, State of Washington. 17 EXHIBIT B DUE DILIGENCE MATERIALS 1 Current preliminary title report, including copies of all recorded documents affecting the Property and a plan showing the site and all easements thereon 2. Maintenance agreements and all service contracts applicable to the Property. 3. Copies of all licenses and permits regarding the Property to the extent in Seller's or its property manager's possession. 4. ALTA survey, engineering and soil reports and any asbestos, toxic waste, or environmental reports previously made regarding the Property, including, but not limited to all Department of Ecology findings, studies, reports and corrective action. 5. A copy of Seller's policy of title insurance. 6. Phase 1 environmental report and any other environmental reports in Seller's possession or control. 7. Copies of any notices or ordinances relating to work necessary to comply with governmental regulations. 8 Copies of current tax bills and insurance policies for fire and property insurance. 9. Documents describing and supporting all existing water rights appurtenant to the Property or sources from which sufficient water rights can be transferred by Seller to the subject Property. 18 EXHIBIT C LIST OF CONTRACTS (Show: (i) date of Contract and each amendment; (ii) name of vendor; (iii) type of service; (iv) termination date of the Contract; (v) monthly charge or other basis for calculating amounts to become due thereunder; and (vi) terms of cancellation by either party) 19 EXHIBIT D FORM OF DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO AND MAIL TAX STATEMENTS TO: City of Yakima 129 North 2nd Street Yakima, WA 98901 Attention: Cliff Moore (Above Space For Recorder's Use Only) STATUTORY WARRANTY DEED FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, ("Grantor"), hereby grants to ("Grantee"), all right, title and interest in that certain real property described in Exhibit A attached hereto and made a part hereof. DATED: , 20 GRANTOR: By: Name: Title: ACKNOWLEDGMENT STATE OF ) )ss. COUNTY OF ) On , 20 before me, (here insert name and title of the notary public), personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (SEAL) 20 EXHIBIT E ASSIGNMENT OF, CONTRACTS, WARRANTIES AND INTANGIBLE PROPERTY THIS ASSIGNMENT OF CONTRACTS, WARRANTIES AND INTANGIBLE PROPERTY (this "Assignment") is made and entered into as of , 20_, by and between _ ("Assignor"), and ("Assignee"). This Assignment is given pursuant to that certain Agreement of Purchase and Sale dated , 2017, by and between Assignor and Assignee (the "Purchase Agreement"). All capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Purchase Agreement. For good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, Assignor does hereby assign, transfer, set over and deliver unto Assignee all of Assignor's right, title, and interest in (i) those certain contracts (the "Contracts") listed on Exhibit C attached hereto, (ii) those certain warranties held by Assignor (the "Warranties") listed on Exhibit C attached hereto, and (iii) the Intangible Property. Except as otherwise expressly provided in the Purchase Agreement, Assignee assumes, effective as of the Closing (as defined in the Purchase Agreement), the payment and performance of, and agrees to pay, perform and discharge, all the debts, duties and obligations to be paid, performed or discharged from and after the Closing, to the extent the same arise on or after the Closing, by (a) the owner under the Contracts, Warranties and/or the Intangible Property. Assignee agrees to indemnify, hold harmless and defend Assignor from and against any and all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) resulting by reason of the failure of Assignee to pay, perform or discharge any of the debts, duties or obligations assumed by Assignee hereunder, to the extent the same arise on or after the Closing. Assignor agrees to indemnify, hold harmless and defend Assignee from and against any and all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or relating to the Contracts, the Warranties and the Intangible Property arising or required to be paid, performed or discharged prior to the Closing. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Assignment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed on the day and year first above written. ASSIGNOR: ASSIGNEE: a a By: By: Name. Name: Title: Title: 21 EXHIBIT F SHARED WELL AGREEMENT 22 SHARED WELL AGREEMENT Grantor(s): CONGDON DEVELOPMENT COMPANY, LLC, a Washington limited liability company; CONGDON ORCHARDS, INC., a Delaware corporation Grantee(s): CITY OF YAKIMA, a Washington municipal corporation Abbreviated Legal Descriptions (full legal descriptions on page 2): Parcel 1: SE % SE'/ S. 34, T. 13 N., R. 18 E.W.M., County of Yakima, State of Washington Parcel 2: NW 1/4 SE 1/4 S. 34, T. 13 N., R. 18 E.W.M., County of Yakima, State of Washington Assessor's Tax Parcel Nos.: Parcel 1: 181334-44001 Parcel 2: 181334-42002 DATE: PARTIES: June g 3 , 2017 GRANTORS: CONGDON DEVELOPMENT COMPANY, LLC, a Washington limited liability company, and CONGDON ORCHARDS, INC., a Delaware corporation 1117 South 64th Avenue Yakima, WA 98907 Shared Well Agreement - 1 GRANTEE: CITY OF YAKIMA, a Washington municipal corporation 129 North 2nd Street Yakima, WA 98901 SUBJECTREAL PROPERTY - BURDENED PROPERTY: The rights and easements granted herein by GRANTORS burdens the real property situated in Yakima County, State of Washington, legally described as follows ("Parcel 1" or the "Burdened Property"): The Southeast 1/4 of the Southeast % of Section 34, Township 13 North, Range 18 E.W.M., records of Yakima County, Washington.' Parcel No. 181334-44001 SUBJECTREAL PROPERTY—BENEFITED PROPERTY: The rights and easements granted herein to GRANTEE .shall be for the benefit of the real property situated in Yakima County, State of Washington and legally described as follows ("Parcel 2" or the "Benefited Property"): The Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; EXCEPT beginning at the Northwest corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range18, E.W.M.; thence Easterly along the North line of said subdivision 1,320 feet, more or less, to the Northeast corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; thence Southerly along the Easterly line of said subdivision 511.03 feet; thence North 70° 03' West 1,402.4 feet, more or less, to the Westerly line of said subdivision; thence .Northerly along the Westerly line of said subdivision 37.1 feet, more or less, to the point of beginning; AND EXCEPT that part lying within the County Road, along the North and East sides. Situated in Yakima County, State of Washington. Parcel No. 181334-42002. RECITALS A. This Shared Well Agreement. (the "Agreement") addresses a groundwater certificate issued by the Washington Department' of Ecology for irrigation purposes under G4 - 24465C (the "Groundwater Right") and the well situated on the Burdened Property. The Groundwater Right was issued•for the irrigation of 101 acres consisting of the Burdened Property (40 acres), the Benefited Property (32 acres), and Yakima County Parcel No. 181335-33001 (29 acres). As and since the date of the certificate, the location of the diversion/withdrawal of irrigation water has been from a well which is located on the above-described Burdened Property, Parcel 1, within the SE Y4 of the SE Y4 of .Section 34, Township 13 N., Range 18 E.W.M (hereinafter the "Shared Well"), as depicted on the diagram attached as Exhibit "A" hereto. Shared Well Agreement - 2 B. Under a separate conveyance, GRANTEE is acquiring title, possession and use rights in the Benefitted Property, Parcel 2, from the GRANTORS hereunder, together with the assignment of proportional Groundwater Rights appurtenant thereto as may be available under the aforesaid certificate G4 -24465C (such proportional rights representing 31.68% of the certificated Groundwater Right). C. GRANTORS hereunder shall retain that portion of the Groundwater Rights appurtenant to the Burdened Property, Parcel 1, and Parcel 181335-33001 (such proportional rights representing 68.32% of the certificated Groundwater Right). D. During all times GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, electrical utility charges for the Shared Well shall be proportionately billed by GRANTORS to GRANTEE after such charges are received by GRANTORS from the utility provider in accordance, with the terms set forth in this Agreement. GRANTORS will pay such electric charges directly to the utility. -E. The parties desire to enter into this Agreement in order to confirm ownership and use rights in the Shared Well, as well as to provide for the maintenance, repair and replacement of said Shared Well, including sharing of costs associated, therewith. NOW THEREFORE, the parties agree as follows: WELL AGREEMENT 1. Ownership and Use of Shared Well. 1.1 It is agreed that title ownership in the Shared Well and all appurtenances shall be vested in GRANTORS. 1.2 Assuming sufficient pumping capacity, the right to withdraw waterfrom the Shared Well shall be exercised by GRANTORS and GRANTEE to the extent of their respective ownership of appurtenant Groundwater Rights as herein provided. 1 3 Together, the Groundwater Right authorizes irrigation of 101 acres, 40 acres on the Burdened Property, Parcel 1, 32 acres on the Benefited Property, Parcel 2, and 29 acres on GRANTORS Parcel 181335-33001. Therefore, GRANTOR shall beentitled to exercise a 69/101 interest in the Groundwater Right, while GRANTEE shall be entitled to exercise a 32/101 interest in the Groundwater Right. Accordingly, GRANTOR shall hold a 68.32 percent Interest and GRANTEE shall hold a 31:68 percent interest in water as maybe available from time to time from the. Shared Well,, up to the combined, authorized instantaneous and annual entitlements under the Groundwater Right (hereafter, the "Pro Rata Interests"). 1.4 At such times (if ever) as the Shared' Well may,. for any reason, be incapable of pumping water to the full extent of combined instantaneous and annual entitlements under the Groundwater Right, the parties shall be, limited to their Pro. Rata Interests in such quantities of water as may actually be available, but subject to their right to enter into mutually agreed, alternative arrangements for allocation of the Groundwater Right. Shared Well Agreement - 3 2. Costs and Cost Sharing. 2.1 To the extent GRANTEE elects in writing to utilize groundwater from the Shared Well on Parcel 2, if any additional improvements may be necessary to extend water delivery to the Benefited Property from the Shared Well, GRANTORS shall pay for the cost of connections to, and piping from the Shared Well to the Benefited Property. To the extent GRANTEE has elected in writing to utilize groundwater from the Shared Well GRANTEE shall be responsible for the cost of any licenses or fees charged by governmental agencies for constructing and maintaining any such additional improvements. 2.2 To the extent GRANTEE ,has effected in writing to utilize groundwater from the Shared Well and during such times as GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, all costs to maintain and repair the Shared Well and all associated apparatus (excluding dedicated_ pipelines that serve only GRANTEE's property or GRANTORS' property; but are not used in common) shall be borne•by the parties in proportion to their Pro Rata Interests. After any construction called for under Section 2.1 above, the parties shall be separately responsible for installing, replacing and maintaining any connecting pipeline that solely benefits their properties. 2.3 To the extent GRANTEE has elected in writing to utilize groundwater from the Shared Well and during such times as GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, all electrical charges for operating the Shared Well pump and associated infrastructure shall be borne by the parties in proportion to their Pro Rata Interests, asfollows: The owner of the Burdened Property, Parcel 1, shall be named on the electrical utility account for the Shared Well and, in that capacity, shall receive and pay all bills as they become due. At the end of each calendar year the owner of Parcel 1 shall provide notice to the, owner of the Benefited Property, Parcel 2, including commercially acceptable documentation showing electrical utility bills and payments for the preceding year, along with a request for reimbursement of Parcel 2's Pro Rata •Share of such costs. The owner of Parcel 2 shall pay such amount within thirty (30) days of such notice. 2.4 During such times as GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, on the failure of either party to pay or reimburse its Pro Rata Share of the maintenance and repair costs and/or electrical utility charges within thirty(30) days following notice as„herein provided, the -party who pays the same, shall have a lien right against the other owner's parcel in the amount of the un - reimbursed charges, for which said party may file a Notice of Lien with the Yakima County Auditor's Office. When the owner or party otherwise holding possessory and use rights in the liened parcel pays all un -reimbursed charges -due, including` interest at twelve percent (12%) per annum, from the date the Notice of Lien as recorded, reasonable attorney's fees, and all title and filing fees incurred, the aforementioned lien shall :thereupon be released. If such payment is not made, the lien may be foreclosed as a mortgage in the manner provided by law and shall include all such additional fees and costs. EASEMENT Shared Well Agreement - 4 The owner of the Burdened Property, Parcel 1, hereby grants to the owner of the Benefited Property, Parcel 2, a non-exclusive easement over, upon and across Parcel 1 where the Shared Well and connecting pipelines are now situated, for the benefit of Parcel 2 (the "Easement Area"), for the purpose of using, maintaining and repairing or replacing the same, including any connecting pipeline over and across Parcel 1 for delivery of water to Parcel 2, together with the right of ingress and egress for said purposes. Consistent with the non-exclusive nature of this easement, the owner of Parcel 1 shall have the right to use the surface of the ground across the Easement Area for any purpose that will not interfere with the exercise of rights granted herein to the owner of Parcel 2. MISCELLANEOUS PROVISIONS 1. Covenant Running with the Land. All rights and duties under this Agreement shall be binding upon and inure to the benefit of the parties hereto and their legal successors, assigns, transferees, personal representatives, heirs and legatees, and shall constitute a covenant running with the land. 2. Waiver of Warranties. It is understood and acknowledged that the parties hereto are making NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, regarding the Shared Well and associated water delivery infrastructure, including the suitability or fitness of said Shared Wall and associated water delivery infrastructure for any particular purpose, including the withdrawal and delivery of irrigation water. 3. Enforcement. If either party should violate any provision of this Agreement, including the herein provisions regarding the Shared Well and Easement, and such party does not cease or cure such violation promptly after receiving notice of a request to do so from the other party in the herein -provided manner, an action to enjoin such violation may be commenced in the Yakima County Superior Court, and the prevailing party in such action shall be entitled to recover its reasonable attorney's fees in addition to the other costs allowed by law, without in any way limiting any other rights or remedies available to the parties under the Agreement or applicable law. 4. Nonuse, Cessation of Use, Termination. If, after Initiating the use of groundwater from the Shared Well by written intent to do so, Grantee either resorts to an exclusive, alternative source of irrigation water for the Benefited Property for a period of twenty- four (24) months, or ceases to make use of the Shared Well and Groundwater Right associated therewith for a period of twenty-four (24) months, then the rights and interests conveyed herein to the GRANTEE and Benefited Property shall cease and this Agreement shall be terminated. While the foregoing termination provision shall not become effective until such time GRANTEE submits written intent to withdraw water from the Shared Well to GRANTOR, nevertheless, if suchwritten request is not made within seven (7) years of the effective date of this,Agreement then the rights and interests conveyed herein to the GRANTEE and Benefited Property shall cease and this Agreement shall be terminated. 5. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof and supersedes any prior agreements, written or oral, with respect thereto. 6. Amendment. The provisions of this Agreement may be terminated, altered or amended only upon the mutual written agreement of the owners of the Burdened and Benefited Properties, Shared Well Agreement - 5 7. Notices. Notices under this Agreement shall be in writing and, unless otherwise required by law, may be delivered (1) personally; (2) by U.S. mail, certified or registered; or (3) by a nationally recognized overnight courier service to the addresses set forth above, or such other addresses as the parties may from time to time designate. Mailed notices shall be deemed effective on the third day after deposited as registered or certified mail, postage prepaid, directed to the other. Couriered notices shall be deemed delivered when the courier's records indicate that delivery has occurred. Either party may change its address for notices by written notice to the other. IN WITNESS WHEREOF, the undersigned have set their hands the day and year first above written. GRANTORS: GRANTEE: • CON9DON-ORCHARDS, INC: CITY OF YAKIMA- . 041 By: Gene Woodin, President and 0 CO DON DEVELOPMENT COMPANY, LLC By t ongdon Orchards, Inc., Manager By: Gene Woodin, President and By: Cli Moore, City Manager Date Executed: 23/7 Date Executed: STATE OF WASHINGTON County of Yakima ) ss. • On this to day of .Tva1/e , 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Gene Woodin, to me known to be the President and CEO of Congdon Orchards, Inc., the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that (s)he is authorized to execute the same instrument on behalf of the corporation. Witness my hand and official seal hereto affixed the , Mq VOiPlIft , u+` o=ff°' 1. Shared Well AgeOpnt.46� 80 ` " Z 4, 20= // OE WASE `• 111,‘,14W,A.:% d year first above}wrItten. NOTA'Y PUBLIC in and for the State of Washington, residing at . Ki -g104.4- My commission Expires:(Ilio//7 STATE OF WASHINGTON ) ss. County of Yakima On this, day of , 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Gene Woodin the President and CEO of Congdon Orchards, Inc., to me known to be the Manager of Congdon Development Company, LLC, the limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company for the uses and purposes therein mentioned, and on oath stated that (s)he is authorized to execute the same instrument on behalf of the limited liability company. Witness my hand and official seal hereto affixed the day and year first above written. STATE OF WASHINGTON ) ss. County of Yakima NOTARY PUBLIC in and for the State of Washington, residing at My commission Expires: On this 74" day of t ,t , 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly c•mmissioned and sworn, personally appeared Cliff Moore, to me known to be the City Manager for the City of Yakima, the municipal corporation that executed the foregoing instrument, and acknowledged the 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 (s)he is authorized to execute the same instrument on behalf of the limited liability company. Witness my hand and official seal hereto affixed the day and year first above written. NO A Y PUBLIC in and for thtate of Washington, residing at . V4 /lti,i,,,4 Gt ,g My commission Expires: i - i 2 - ao Notary Public State of Washington KAARRE ALLYN MY COMMISSION EXPIRES January 12, 2020 Shared Well Agreement - 7 SHARED WELL AGREEMENT Grantor(s): CONGDON DEVELOPMENT COMPANY, LLC, a Washington limited liability company; CONGDON ORCHARDS, INC.; a Delaware corporation Grantee(s): CITY OF YAKIMA, a Washington municipal corporation Abbreviated Legal Descriptions (full legal descriptions on page 2): Parcel 1: SE 1/4 SE 'A S. 34, T. 13 N., R. 18 E.W.M., County of Yakima, State of Washington Parcel 2: NW 1/4 SE 1/4 S. 34, T. 13 N., R. 18 E.W.M., County of Yakima, State of Washington Assessor's Tax Parcel Nos.: Parcel 1: 181334-44001 Parcel 2: 181334-42002 DATE: PARTIES: June 3 , 2017 GRANTORS: CONGDON DEVELOPMENT COMPANY, LLC, a Washington limited liability company, and CONGDON ORCHARDS, INC., a Delaware corporation 1117 South 64th Avenue Yakima, WA 98907 Shared Well Agreement - 1 GRANTEE: CITY OF YAKIMA, 'a Washington municipal corporation 129 North 2nd Street Yakima, WA 98901 SUBJECT REAL PROPERTY - BURDENED PROPERTY: The rights and easements granted herein by GRANTORS burdens the real property situated in Yakima County, State of Washington, legally described as follows ("Parcel 1" or the "Burdened Property"): The Southeast % of the Southeast 1/4 of Section 34, Township 13 North, Range 18 E.W.M., records of Yakima County, Washington.' Parcel No. 181334-44001 SUBJECT REAL PROPERTY—BENEFITED PROPERTY: The rights and easements granted, herein to GRANTEE 'shall be for the benefit of the real property situated in Yakima County, State of Washington and legally described as follows ("Parcel 2' or the "Benefited Property"): The Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; EXCEPT beginning at the Northwest corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; thence Easterly along the North line of said subdivision 1,320 feet, more. or Tess, to the Northeast corner of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.; thence Southerly along the Easterly line of said subdivision 511.03 feet; thence North 70° 03' West 1,402.4 feet, more or less, to the Westerly line of said subdivision; thence. Northerly along the Westerly line of said subdivision 37.1 feet, more or less, to the point of beginning; AND EXCEPT that part lying within the County Road, along the North and East sides. Situated in Yakima County, State of Washington. Parcel No. 181334-42002. RECITALS A. This Shared Well Agreement. (the "Agreement") addresses a groundwater certificate issued by the Washington Department of Ecology for irrigation :purposes under G4 - 24465C (the "Groundwater Right") and the well situated on the Burdened Property. The Groundwater Right was issuedfor the irrigation of 101 acres consisting of the Burdened Property (40 acres), the Benefited Property (32 acres), and Yakima County Parcel No. 181335-33001 (29 acres). As and since the date of the certificate, the location of the diversion/withdrawal of irrigation water has been from a well which is located on the above-described Burdened Property, Parcel 1, within the SE 1/4 of the SE % of .Section 34, Township 13 N., Range 18 E.W.M (hereinafter the "Shared Well"), as depicted on the diagram attached as Exhibit "A" hereto. Shared Well Agreement - 2 B. Under a separate conveyance, GRANTEE is acquiring title, possession and use rights in the Benefitted Property, Parcel 2, from the GRANTORS hereunder, together with the assignment of proportional Groundwater Rights appurtenant thereto as may be available under the aforesaid certificate G4 -24465C (such proportional rights representing 31.68% of the certificated Groundwater Right). C. GRANTORS hereunder shall retain that portion of the Groundwater Rights appurtenant to the Burdened Property, Parcel 1, and Parcel 181335-33001 (such proportional rights representing 68.32% of the certificated Groundwater Right). D. During all times GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, electrical utility charges for the Shared Well shall be proportionately billed by GRANTORS to GRANTEE after such charges are received by GRANTORS from the utility provider in accordance. with the terms set forth in this Agreement. GRANTORS will pay such electric charges directly to the utility. E. - The parties desire to enter into this Agreement in order to confirm ownership and use rights in the Shared WeII, as well as to provide for the maintenance, repair and replacement of said Shared Well, including sharing of costs associated, therewith. NOW THEREFORE, the parties agree as follows: WELL AGREEMENT 1. Ownership and Use. of Shared Well. 1.1 It is agreed that title ownership in the Shared Well and all appurtenances shall be vested in GRANTORS. 1.2 Assuming sufficient pumping capacity, the right to withdraw water from the Shared Well shall be exercised by GRANTORS and GRANTEE to the extent of their respective ownership of appurtenant Groundwater Rights as herein provided. 1 3 Together, the Groundwater Right authorizes irrigation of 101 acres, 40 acres on the Burdened Property, Parcel 1, 32 acres on the Benefited Property, Parcel 2, and 29 acres on GRANTORS Parcel 181335-33001. Therefore, the, shall be entitled to exercise a 69/101 interest in the Groundwater Right, while GRANTEE shall be entitled to exercise a 32/101 interest in the Groundwater Right. Accordingly, GRANTOR shall hold a 68.32 percent interest and GRANTEE shall hold a 31:68 percent interest in water as may be available from time to time from the Shared Well,, up to the combined, authorized 'instantaneous and annual entitlements under the Groundwater Right (hereafter, the "Pro Rata Interests"). 1.4 At such times (if ever) as the Shared' Weil may, • for any reason, be incapable of pumping water to the full extent of combined instantaneous and annual entitlements under the Groundwater Right, the parties shall be limited to their Pro. Rata interests in such quantities of water as may actually be available, but subject to their right to enter into mutually agreed, alternative arrangements for allocation of the Groundwater Right. Shared Well Agreement - 3 2. Costs and Cost Sharing. 2.1 To the extent GRANTEE elects in writing to utilize groundwater from the Shared Well on Parcel 2, if any additional improvernents may be necessary to extend water delivery to the Benefited Property from the Shared Well, GRANTORS shall pay for the cost of connections to, and piping from the Shared Well to the Benefited Property. To the extent GRANTEE has elected in writing to utilizegroundwater from the Shared Well GRANTEE shall be responsible for the cost of any licenses or fees charged by governmental agencies for conatructing.and maintaining any such additional improvements. 2.2 To the extent GRANTEE ,has elected in writing to utilize groundwater from the Shared Well and during such times as GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well that is the subject of this Agreement, all costs to maintain and repair the Shared Well and all associated apparatus (excluding dedicated_ pipelines that only GRANTEE's property or GRANTORS' property, but are not used in common) shall be .borne by the parties in proportion to their Pro Rata Interests. After any construction called for under Section 2.1 above, the parties shall be separately resp onslble for installing, replacing and maintaining any connecting pipeline that solely benefits their properties. 2.3 To the extent GRANTEE has elected in writing to utilize groundwater from the Shared Well and during such times as GRANTEE is actually receiving groundwater 'for application on Parcel 2 from the Shared Well that is the subject of this Agreement, all electrical charges for operating the Shared Well pump and associated infrastructure shall be borne by the parties in proportion to their Pro Rata Interests, as follows: The owner of the'Burdened Property, Parcel 1, shall be named on the electrical utility account for the Shared Well and, in that capacity, shall receive and pay all bills as they become due. At the end of each calendar year the owner Of Parcel 1 shalt provide notice to the. owner of the Benefited Property, Parcel 2„ including commercially acceptable documentation showing electrical utility bills and payments for the preceding year, along with a request for reimbursement of Parcel 2's Pro Rata Share of such costs. The owner of Parcel 2 shall pay such amount within thirty (30) days of such notice. 2.4 During such times as GRANTEE is actually receiving groundwater for application on Parcel 2 from the Shared Well thatis the subject of:this Agreement, on the failure of either party to pay or reimburse its Pro Rata Share of the maintenance and repair costs and/or electrical utility charges within thirty (30) days following notice as herein provided, the party who pays thesame, shall have a lien right against the other owner's parcel in the amount of the un- reimbursed charges, for which said party may file a Notice of Lien with the Yakima County Auditor's Office. When the owner or party otherwise holding possessory and use rights in the liened parcel pays all un-reimbursed charges due, including 'interest at twelve percent (12%) per annum, from the date the Notice of Lien as recorded, reasonable attorney's fees, and all title and filing fees incurred, the aforementioned lien shall thereupon be released. If such payment is not made, the lien may be foreclosed as a mortgage in the manner provided by and shall include all such additional fees and costs. EASEMENT Shared Well Agreement - 4 The owner of the Burdened Property, Parcel 1, hereby grants to the owner of the Benefited Property, Parcel 2, a non-exclusive easement over, upon and across Parcel 1 where the Shared Well and connecting pipelines are now situated, for the benefit of Parcel 2 (the "Easement Area"), for the purpose of using, maintaining and repairing or replacing the same, including any connecting pipeline over and across Parcel 1 for delivery of water to Parcel 2, together with the right of ingress and egress for said purposes. Consistent with the non-exclusive nature of this easement, the owner of Parcel 1 shall have the right to use the surface of the ground across the Easement Area for any purpose that will not interfere with the exercise of rights granted herein to the owner of Parcel 2. MISCELLANEOUS PROVISIONS 1. Covenant Running with the Land. All rights and duties under this Agreement shall be binding upon and inure to the benefit of the parties hereto and their legal successors, assigns, transferees, personal representatives, heirs and legatees, and shall constitute a covenant running with the land, 2. ' Waiver of Warranties. It is understood and acknowledged that the parties hereto are making NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, regarding the Shared Well and associated water delivery infrastructure, including the suitability or fitness of said Shared Wall and associated water delivery infrastructure for any particular purpose, including the withdrawal and delivery of irrigation water. 3. Enforcement. If either party should violate any provision of this Agreement, including the herein provisions regarding the Shared Well and Easement, and such party does not cease or cure such violation promptly after receiving notice of a request to do so from the other party in the herein -provided manner, an action to enjoin such violation may be commenced in the Yakima County Superior Court, and the prevailing party in such action shall be entitled to recover its reasonable attorney's fees in addition to the other costs allowed by law, without in any way limiting any other rights or remedies available to the parties under the Agreement or applicable law. 4. Nonuse, Cessation of Use, Termination. If, after initiating the use of groundwater from the Shared Well by written intent to do so, Grantee either resorts to an exclusive, alternative source of irrigation water for the Benefited Property for a period of twenty- four (24) months, or ceases to make use of the Shared Well and Groundwater Right associated therewith for a period of twenty-four (24) months, then the rights and interests conveyed herein to the GRANTEE and Benefited Property shall cease and this Agreement shall be terminated. While the foregoing termination provision shall not become effective until such time GRANTEE submits written intent to withdraw water from the Shared Well to GRANTOR, nevertheless, if such written request is not made within seven (7) years of the effective date of this,Agreement then the rights and interests conveyed herein to the GRANTEE and Benefited Property shall cease and this Agreement shall be terminated. 5. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof and supersedes any prior agreements, written or oral, with respect thereto. 6. Amendment. The provisions of this Agreement may be terminated, altered or amended only upon the mutual written agreement of the owners of the Burdened and Benefited Properties. Shared Well Agreement - 5 7. Notices. Notices under this Agreement shalt be in writing and, unless otherwise required by law, may be delivered (1) personally; (2) by U.S. mail, certified or registered; or (3) by a nationally recognized overnight courier service to the addresses set forth above, or such other addresses as the parties may from time to time designate. Mailed notices shall be deemed effective on the third day after deposited as registered or certified mail, postage prepaid, directed to the other. Couriered notices shall be deemed delivered when the courier's records indicate that delivery has occurred. Either party may change its address for notices by written notice to the other. IN WITNESS WHEREOF, the undersigned have set their hands the day and year first above written. GRANTORS: GRANTEE: • CON3DON ORCHARDS, INC. CITY OF YAKIMA- MBy: Gene Woodin, President andpO By:Clioore, C it CO DON DEVELOPMENT COMPANY, LLC By ' ongdon Orchards, Inc., Manager id/ By: Gene Woodin, President and ,�• Date Executed: yManager aoi7-- Z CITY CONTRACT NO: _ �3 RESOLUTION NO: 377 Date Executed: STATE OF WASHINGTON ) ss. County of Yakima !d On this 23 day of ._ 7 t/ - 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Gene Woodin, to me known to be the President and CEO of Congdon Orchards, Inc:, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that (s)he is authorized to execute the same instrument on behalf of the corporation. Witness my hand and official seal hereto affixed the •ay,a d year first aboverltten. NOTA'Y PUBLIC in and State of Washington, residing at . tUi i$14,4- My commission Expires: iI fzo//7 STATE OF WASHINGTON ) ) ss. County of Yakima ) On this day of . 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Gene Woodin the President and CEO of Congdon Orchards, Inc., to me known to be the Manager of Congdon Development Company, LLC, the limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company for the uses and purposes therein mentioned, and on oath stated that .(s)he is authorized to execute the same instrument on behalf of the limited liability company. Witness my hand and official seal hereto affixed the day and year first above written; STATE OF WASHINGTON ) ss. County of Yakima NOTARY PUBLIC in and for the State of Washington, residing at My commission Expires: On this 74" day of l e -C , 2017, before me, the undersigned, a Notary Public in and for the State of Washington, duly c• mmissioned and sworn, personally appeared Cliff Moore, to me known to be the City Manager for the City of Yakima, the municipal corporation that executed the foregoing instrument, and acknowledged the 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 (s)he is authorized to execute the same instrument on behalf of the limited liability company. Witness my hand and official seal hereto affixed the day and year first above written. Notary Public State of Washington KAARRE ALLYN MY COMMISSION EXPIRES January 12, 2020 Shared Well Agreement - 7 r(41--‘0- NOTARY PUBLIC in and for tli tate of Washington, residing at l f /4e.,12,4 Gt/A0 My commission Expires I - / 2 3H720I7 Exhibit A Yakima County 013 Yakima County 013 - Waehlnpton a C In r0att51 ortaj v*,4gP flflEOUAR/tNTEE ++km.w.n as . ► .. WVN VITOCO.COM -., .111tt 1i :°„►: ganlf140-1444 maim Monolog Rnal Estate FAQ Help LegendI Search I Tools ).Overview •' is 6't Prot t Num.:'. tenp�Oreq „IIT�:�i ip7�.Nur �• �0.� WGII joCltflbf s m, 40o wo 4 VoKoy,71(le:Otmren(oe ®. T410 lnsuiineo 8 , Escrow 6mMc ,InMY.vt ce.Cera -! V._ (908)248.4442 '+ ."_.QM Yfeh,�iyQ�fet'•, .r Mato CI oyort' KINAwmyaSdmnp.eaaraonAo4cam.osrl.earlmep.Fsrlmnp?name.Yek013F18Cmd=2MON81atta107A27883ottpnn440 108RIght. i6t4218Top=451500STA... 01 01MFSICONGDON ORCHARDS, INC: 021001SOZO-City of Yakima Praperty-0421Shered Well Agreement.dacx Shared Well Agreement - 8