HomeMy WebLinkAboutR-2005-061 Real Property Purchase from Congdon OrchardsRESOLUTION NO. R-2005- 61
A RESOLUTION approving the purchase of Yakima County Assessor's Parcel No.
181334-22005 located at South 48th Avenue and West Mead
Avenue, Yakima, Washington, the legal description of which is
attached hereto and incorporated by reference herein as Exhibit "A",
from Congdon Orchards, Inc., a Delaware corporation, and directing
and authorizing the City Manager of the City of Yakima, or his
designee, to execute a Settlement Agreement substantially in the
form as attached hereto as Exhibit "8", and to take any additional
actions and to execute any additional documents that may be
necessary for or relating to the purchase of said property.
WHEREAS, the City of Yakima desires to acquire certain real property located at
South 48th Avenue and West Mead Avenue, Yakima, Washington for the construction
of public improvements known as the Washington Avenue Widening—Phase I, South
52nd Avenue to South 24th Avenue Project Nos. 1901 and 1958, and such construction
is in accordance with the City of Yakima's Six -Year Transportation Improvement
Program for the Period 2001 through 2006 as adopted by the City Council of the City of
Yakima under Resolution No. R-2000-78, dated June 27, 2000; and
WHEREAS, RCW Title 35.21 authorizes the City of Yakima to acquire, hold,
possess and dispose of property; and
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima to purchase the said property from Congdon Orchards, Inc.; and
WHEREAS, Congdon Orchards, Inc. desires to sell said the said property to the
City of Yakima; 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 Settlement Agreement substantially in the form attached hereto as Exhibit "B"
and to take any additional actions and execute any additional documents that may be
necessary for and relating to the purchase of the said property by the City of Yakima.
The Settlement Agreement and all other documents relating to the purchase of the said
property shall be approved as to form by the City Attorney.
RESOLUTION - 1
718.011rhg\yakima cit\congdon orchard\resolution purchase
ADOPTED BY THE CITY COUNCIL this 19th day of April, 2005.
ATTEST:
/<a.�w ,d 0-e-6.o,t,
City Clerk
RESOLUTION - 2
718.01\rhg\yakima cit\congdon orchard\resolution purchase
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Pa . George, Mayor
SETTLEMENT AGREEMENT
This Settlement Agreement is being entered into on the last date entered on the
signature pages and is between the City of Yakima, State of Washington (hereafter the "City")
and Congdon Orchards, Inc., a Delaware corporation (hereafter "Congdon").
RECITALS
WHEREAS it is necessary for the public use and required by the public interests that the
City construct public improvements known as the Washington Avenue Widening --Phase I,
South 52nd Avenue to South 24th Avenue Project Nos. 1901 and 1958 (hereinafter the
"Project"), and such construction is in accordance with the City of Yakima's Six -Year
Transportation Improvement Program for the Period 2001 through 2006 as adopted by the
Yakima City Council under Resolution No. R-2000-78 dated June 27, 2000; and
WHEREAS Congdon owns in fee simple certain real property situated in the County of
Yakima, state of Washington located at South 48th Avenue and West Mead Avenue, Yakima,
Washington, the legal description of which is attached hereto and incorporated by reference
herein as Exhibit "A"; and
WHEREAS said property will be damaged or otherwise interfered with in such a manner
by the City's construction and/or existence of the Project so as to be legally compensable, and
such damage or other interference is required for the interests of the public and of the City and
does constitute a necessary public use of said property and interests; and
WHEREAS the City, pursuant to RCW Chap. 8.12, wishes to pay reasonable
compensation to Congdon for such damage or other interference which will be caused to its
property by the construction and/or existence of the Project; and
WHEREAS the City obtained a market valuation of said property which indicated the fair
market value of said property to be $21,327.00 and Congdon has not obtained an independent
appraisal of said property; however, it concurs with the City's market valuation of said property;
and
WHEREAS the City and Congdon each wish to resolve their differences without the
necessity and costs of litigation as to the value of said property and the uncertainties connected
therewith;
EXHIBIT B
SETTLEMENT AGREEMENT - 1
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AGREEMENT
IT IS THEREFORE AGREED by and between the City and Congdon that for purposes of
settlement only:
1. The City shall pay Congdon $21,327.00 in total compensation for the
condemnation of Congdon's property located at South 48th Avenue and West Mead Avenue,
Yakima, Washington, the legal description of which is attached hereto as Exhibit "A".
2. Congdon agrees to accept $21,327.00 as fair and reasonable compensation in
full for the land taken by the construction and/or existence of the Project and shall not seek
further or additional compensation of any kind for any damage or claims of damage for the
said land taken and agrees that said compensation reflects the fair market value of said
land.
3. Congdon shall transfer all its rights and interests in said property to the City by
the execution of a Statutory Warranty Deed in fee simple absolute and an Excise Tax
Affidavit in the form attached hereto as Exhibits "B" and "C" to the City and shall claim no
additional interest in said property nor shall it seek additional compensation of any kind from
the City caused by the construction and/or existence of the Project.
4. The City and Congdon agree to cooperate fully and execute any and all
supplementary documents and to take all additional actions that may be necessary or
appropriate to give full force and effect to the basic terms and intent of this Settlement
Agreement. Such documents shall include escrow instructions as set forth as Exhibit "D".
5. Closing on said property shall take place on April 28, 2005. The closing agent
shall be Lyon, Weigand & Gustafson PS, 222 North Third Street, Yakima, Washington.
6. This Settlement Agreement expresses the full and complete settlement of by
and between the City and Congdon with respect to said property.
7. Congdon has completely read this Settlement Agreement and fully
understands and voluntarily accepts it for the purpose of final resolution and settlement of
any and all claims with respect to fair and reasonable compensation for the damage or other
interference which will be caused to his property by the construction and/or existence of the
Project.
8. The terms and conditions of this Settlement Agreement shall not be amended
or modified except in writing signed by the City and Congdon. This Settlement Agreement is
SETTLEMENT AGREEMENT - 2
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fully integrated and constitutes the entire agreement of the parties. There are no other
agreements of these parties.
9. This Settlement Agreement has been reviewed and approved by each of the
parties after negotiation of the terms thereof. In the event it should be determined that any
provision of this Settlement Agreement is uncertain or ambiguous, the language in all parts
of the agreement shall be in all cases construed as a whole according to the fair meaning of
the agreement, and not strictly construed for or against any party.
10. If any provision herein is invalid, it shall be considered deleted from this
Settlement Agreement and shall not invalidate the remaining provisions of this agreement.
DATED this day of , 2005.
CONGDON ORCHARDS, INC.
By
THE CITY OF YAKIMA
By
Dick Zais, City Manager
SETTLEMENT AGREEMENT - 3
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Exhibit "A"
Legal Description:
The South 33 feet of the North 100 feet of the Northwest 1/4 of the Northwest 1/4 of
Section 34, Township 13 North, Range 18, E.W.M.;
EXCEPT the West 20 feet.
Situated in Yakima County, state of Washington.
Yakima County Assessor's Parcel No. 181334-22005.
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When recorded please return to:
Russell Gilbert
Lyon, Weigand & Gustafson PS
P.O. Box 1689
Yakima WA 98907
STATUTORY WARRANTY DEED
THE GRANTOR, Congdon Orchards, Inc., a Delaware corporation, for and in
consideration of TEN AND NO/100 DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION, in hand paid, conveys and warrants to the City of Yakima, State of
Washington, the following described real estate, situated in the County of Yakima, State
of Washington:
The South 33 feet of the North 100 feet of the Northwest 1/4 of the
Northwest 1/4 of Section 34, Township 13 North, Range 18, E.W.M.;
EXCEPT the West 20 feet.
Yakima County Assessor's Parcel No. 181334-22005.
TOGETHER WITH all water rights and appurtenances including after
acquired title, if any, thereunto belonging.
SUBJECT TO all pending and future litigation adjudicating and determining
ground and surface waters in any water drainage basin of which the
property is a part.
SUBJECT TO rights reserved in federal patents, state or railroad deeds;
building or use restrictions general to the area; zoning regulations; all rights
of way, easements, reservations, restrictions, agreements, covenants and
conditions appearing in the record of title or apparent on inspection of said
premises and/or plat.
STATUTUORY WARRANTY DEED - 1
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
DATED this day of , 2005.
Congdon Orchards, Inc.
By:
Its
STATE OF
ss.
County of )
On this day personally appeared before me,
to me known to be the 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 he was authorized to
execute the said instrument.
GIVEN under my hand and official seal this day of
2005.
STATUTUORY WARRANTY DEED - 2
718-01\rhg\yakima cit\congdon orchard\swd
(Printed Name)
Notary Public in and for the State
of Washington, residing at
My commission expires :
Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
Congdon Orchards, Inc. City of Yakima
129 North Second Street
Yakima, WA 98902
181334-22005
City of Yakima
129 North Second Street
Yakima, WA 98902
Yakima Yakima
South 48th Avenue and West Mead Avenue, Yakima, Washington
The South 33 feet of the North 100 feet of the Northwest 1/4 of the Northwest 1/4 of Section 34, Township 13
North, Range 18, E.W.M.; EXCEPT the West 20 feet.
Yakima County Assessor's Parcel No. 181334-22005.
N/A[PDG1]
458-61-420(c)
Government Transfer[PDG2]
Statutory Warranty Deed
21,327.00
21,327.00
2.00
Congdon Orchards, Inc.
4/ /2005 at
City of Yakima
4/ /2005 at Yakima
DEPARTMENT
OF REVENUE
L. WASHINGTON STATE
REAL ESTATE EXCISE TAX AFFIDAVIT
PLEASE TYPE OR PRINT CHAPTER 82.45 RCW - CHAPTER 458-61 WAC
SEE BACK PAGE FOR USE AT COUNTY TREASURER'S OFFICE
(Use Fonn No. 84-0001 B for Reporting Transfers of Controlling Interest of Entity Ownership to the Department of Revenue)
TIIIS AFFIDAVIT WILL NOT BE ACCEPTED UNLESS ALL AREAS 1-7 ARE FULLY COMPLETED
This form is your receipt
when stamped by cashier
ISELLER
GRANTOR
Naive Congdon Orchards, Inc.
tr
w
m
Name City of Yakima
Street
Street 129 North Second
Street
98902
City/State/Zip
City/State/Zip Yakima, WA
NE
Name
Street
City/State/Zip
ADDRESS TO SEND A LL PROPERTY TAX RELA !ED CORRESPONDENCE
City of Yakima
18,4,38,14P, o0:5MBERS
LIST ASSESSED VAL.UP.(S)
129 North Second Street
Yakima, WA 98902
• LEGAL DESCRIPTION OF PROPERTY SITUATED 1N 0 UNINCORPORATED_xaklma COUNTY OR 0 IN CITY OF Yakima
Street Address (if property is improved): Southamt8 Avenuy_and-West-Mead_Avenue--Yakimar Washington
The South 33 feet of the North 100 feet of the Northwest 1/4 of the Northwest 1/4 of Section 34, Township 13
North, Range 18, E.W.M.; EXCEPT the West 20 feet.
ma �..,,ssessnr's Parol No 181334=22001
Is this property currently YES NO Description of personal property included in gross selling price, both
tangible (eg; furniture, equipment, etc.) or intangible (cg; goodwill,
Designated as forest land? 0 ❑ agreement not to compete, etc.)
Chapter 84.33 RCW
Classified as current use land (open space, farm
and agricultural, or timber)? Chapter 84.34 RCW
Exempt from property tax as a nonprofit 0 0
organization? Chapter 84.36 RCW
Seller's Exempt Reg. No.
0 0
Receivings)tecial valuation as historic
property?'Chapter 84.26 RCW
Property Type: ❑ land only
❑ land with previously used building
❑ timber only
0 0
❑ land with new building
❑ land with mobile home
❑ building only
Principal Use: ❑ Apt. (4+ unit) 0 residential
0 timber 0 agricultural 0 commercial/industrial
0 other
(1) NOTICE OF CONTINUANCE (RCW 8433 OR RCW 84 14)
If the new owner(s) of land that is designated as forest land or classified
as current use wish to continue the designation or classification, all new
owner(s) must sign below The county assessor must then detcnnine if the
land transferred continues to qualify and will indicate below If the land
no longer qualities, it will be removed and the compensating or additional
taxes will he due and payable by the seller or transferor at the time of sale.
(RCW 84.33 140 or RCW 84.34 108) If the new owner(s) does not desire
to continue such designation or classification, all compensating or
additional tax shall be due and payable by the seller or transferor at the
time of sale. (RCW 84.33.140 or RCW 84.34 108). Prior to signing
below, you may contact your local County Assessor for more information.
This land 0 does 0 does not qualify for continuance.
Date
DEPUTY ASSESSOR
(2) NOTICE OF COMPLIANCE (Chapter 84.26 RCW)
If the new owner(s) of property with special valuation as historic property
wish to continue this special valuation the new owner(s) must sign below
If the new owner(s) do not desire to continue such special valuation, all
additional tax calculated pursuant to Chapter 84.26 RCW, shall be due
and payable by the seller or transferor at the time of sale.
(3) OWNER(S) SIGNATURE
N/A
If exemption claimed, list WAC number and explanation. (If claiming a
gift transfer, see instruction sheet.)
WAC No. (Sec/Sub) 458=61-420(c)
Explanation Government Transfer
Type of Document
S tatuto ry_W a rra nty_Dee d
Date of Document
Gross Selling Price $
Personal Property (deduct) $
Taxable Selling Price 5
Excise Tax. State $
Local 5
*Delinquent Interest Stale b
21,327.00
21;-3 7-00
Local $
*Delinquent Penalty $
Total Due 5
2.00
A MINIMUM OF 52.00 DUE FOR PROCESSING FEE AND TAX.
•SEE INSTRUCTIONS FOR INTEREST AND PENALTIES
AFFIDAVIT
1 Certify Under Penalty of Perjury Under The Laws of The State of
Washington That The Foregoing Is True And Correct. (See hack page of this
form).
Signature of
Grantor/Agent
Name (print) Congdon Orchards, Inc.
Date and Place of Signing: 4/ /2005 at
Signature of
Grantee/Agent
Name (print)
City of Yakima
Date & Place of Signing:4/ /2005 at Yakima
Perjury: Perjury is a class C felony which is punishable by imprisonment in the state correctional institution for a maximum term of not more
than five years, or by a fine in an amount fixed by the court of not more than five thousand dollars (55.000.00), or by both imprisonment and
fine (RCW 9A.20.020 (IC)).
THIS SPACE - TREASURER'S USE ONLY
REV 84 0001a (04 0l -04) (PD 04-01-04)
COUNTY TREASURER
ROBERT M BOGGS
RUSSELL H GILBERT
J ERIC GUSTAFSON
CHARLES R. LYON (1997)
BRYAN P MYRE
WILLIAM D PICKETT
J. PATRICK SHIREY
JEANIE R. TO LCACHER
ERIC R. VARGAS
WM L WEIGAND, JR
LAW OFFICES
LYON, WEIGAND & GUSTAFSON PS
LYON LAW OFFICES - 222 NORTH THIRD STREET
MAILING ADDRESS. PO BOX 1689
YAKIMA, WASHINGTON 98907-1689
TELEPHONE
(509) 248-7220
FACSIMILE
(509) 575-1883
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS
For Purchase and Sale Transaction
BUYER: CITY OF YAKIMA FILE NO.: 718-01
SELLER: Congdon Orchards, Inc. CLOSER: Mollie Earhart
SETTLEMENT AGREEMENT DATED:
2005
PARCEL NOS.: 181334-22005
TITLE COMPANY: FIDELITY TITLE COMPANY
E-MAIL: mearhart@lyon-law.com
CLOSING DATE: April 28, 2005
COUNTY: YAKIMA
PRELIMINARY TITLE
COMMITMENT N'O.: 164356
The undersigned. Buyer and Seller (referred to herein as such individually , or
conjunctively as "the parties") hereby designate and appoint LYON, WEIGAND &
GUSTAFSON, P.S. (referred to herein as "the closing agent") to act as their closing and
escrow agent according to the following agreements and instructions.
IT IS AGREED, AND THE CLOSING AGENT IS INSTRUCTED, AS FOLLOWS:
1. Closing - Attorneys. Lyon, Weigand & Gustafson PS is acting as closing agent
by agreement of the parties and, in that capacity only, will act as fiduciary to both parties in
receiving funds and documents, and recording, delivering and disbursing such funds in
accordance with the transaction between the parties, and in accordance with lender
instructions and requirements. Seller additionally acknowledges that Lyon, Weigand &
Gustafson PS represents the Buyer in this transaction and has given (and will give) legal
advice or legal representation ONLY to Buyer incident to entering into and/or closing this
transaction. Any legal advice and representation for Seller has been arranged by the Seller
through an independent attorney of Seller's choice. Seller acknowledges that Seller IS NOT
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 1
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
relying upon any legal/tax advice from, or representation by, Lyon, Weigand & Gustafson PS,
and that Seller has had sufficient opportunity to review all documents and matters related to
this transaction with Seller's own independent attorney, accountant and/or other advisers and
is ready to complete this transaction without any further independent advice by Seller's own
attorney, accountant and/or other adviser.
2. Terms of Sale. The terms and conditions of the transaction which is the subject
of these instructions (referred to herein as "the transaction") are set forth in the parties'
Settlement Agreement, Earnest Money Agreement, or other written agreement, and any
attachments, amendments or addenda to that agreement (referred to herein as "the parties'
agreement"), which is made a part of these instructions by this reference. Any changes to the
parties' agreement will be made a part of these instructions, without further reference, when
signed by the parties and delivered to the closing agent. These instructions are not intended to
amend, modify or supersede the terms find conditions of the parties' agreement and if there is
any conflict or inconsistency between these instructions and the parties' agreement, the terms
and conditions of the parties' agreement shall control.
3. Description of Real Property. The real property which is the subject of the
transaction (referred to herein as "the property") is identified in the parties' agreement. The
documents required to close the transaction must contain the "legal description" of the
property. if the parties' agreement does not yet contain the correct legal description, the parties
or the real estate agent shall obtain an addendum setting forth the legal description as soon as
possible and deliver it to the closing agent.
4. Closing Date. The date on which the documents required to close the
transaction are filed for record (referred to herein as "the closing date") shall be on or before
the date for closing of the transaction specified in the parties' agreement (unless the closing
date falls within, if applicable, the three-day rescission period after delivery to the buyer of an
amended real property transfer disclosure statement, in which case the closing date shall be
extended until the expiration of such three-day rescission period).
5. Documents. The closing agent is instructed to select, prepare, correct, receive,
hold, record and deliver documents as necessary to close the transaction. The closing agent
may request that certain documents be prepared or obtained by the parties or their attorneys,
in which case the parties shall deliver the requested documents to the closing agent two (2)
days before the closing date. Execution of any document will be considered approval of its
form and contents by each party signing such document.
6. Deposits and Disbursement of Funds. Before the closing date, each party
shall deposit with the closing agent all funds required to be paid by such party to close the
transaction, less any earnest money previously deposited with the real estate agent. The
closing agent is authorized, but not required, to consider a lending institution's written
commitment to deposit funds as the equivalent of a deposit of such funds, if all conditions of
the commitment will be met on or before the closing date. All funds received by the closing
agent shall be deposited in one or more of its escrow or trust accounts with any bank doing
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 2
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
business in the State of Washington and may be transferred to any other such accounts. [THE
CLOSING AGENT SHALL NOT BE REQUIRED TO DISBURSE ANY FUNDS DEPOSITED
BY CHECK OR DRAFT UNTIL IT HAS BEEN ADVISED BY ITS BANK THAT SUCH CHECK
OR DRAFT HAS BEEN HONORED.] All disbursements shall be made by the closing agent's
check.
7. Settlement Statement. The closing agent is instructed to prepare a settlement
statement showing all funds (deposited for the account of each of the parties and the proposed
disbursements from such funds. No funds shall be disbursed until the parties have examined
and approved the settlement statement. Some items may be estimated, and the final amount
of each estimated item will be adjusted to the exact amount required to be paid at the time of
disbursement. The settlement statement will be subject to audit and any errors or omissions
may be corrected at any time. If any monetary error is found, the amount will be immediately
paid by the party liable for such payment to the party entitled to receive it. Payment of such
amounts as are necessary for adjustment of such estimates, errors, costs and fees shall not be
the responsibility of closing agent until such funds are received from the party liable therefor.
8. Prorations. Adjustments or pro -rations of real estate taxes, and other charges if
any, shall be made on a per -diem basis using a 365 day year, unless the closing agent is
otherwise instructed.
9. Title Insurance. The closing agent is instructed to obtain and forward to the
parties a preliminary commitment for title insurance on the property and on any other parcel of
real property that will be used to secure payment of any obligation created in the transaction
(referred to herein as "the title report"). The closing agent is authorized to rely on the title report
in the performance of its duties and shall have no responsibility or liability for any title defects
or encumbrances which are not disclosed in the title report.
10. Verification or Existing Encumbrances. The closing agent is instructed to
request a written statement from the holder of each existing encumbrance on the property,
verifying its status, terms, balance owing and, if it will not be removed at closing, the
requirements that must be met to obtain a waiver of any due -on sale provision. The closing
agent may rely upon such written statements in the performance of its duties, without liability or
responsibility for their accuracy or completeness.
11. Instructions From Third Parties. If any written instructions necessary to close
the transaction according to the parties' agreement are given to the closing agent by anyone
other than the parties or their attorneys, including but not limited to lenders, such instructions
are accepted and agreed to by the parties.
12. Disclosure of Information to Third Parties. The closing agent is authorized to
furnish, upon request, copies of any closing documents, agreements or instructions concerning
the transaction to the parties' attorneys, and to any real estate agent, lender or title insurance
company involved in the transaction. Other papers or documents containing personal or
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 3
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
financial information concerning any party may not be released to anyone other than the
party's attorney or lender, without prior written approval.
13. Potential Legal Problems. If the closing agent becomes aware of any facts,
circumstances or potential problems which, in its opinion, should be reviewed by any of the
parties' attorneys, the closing agent is authorized, in its sole (discretion, to advise the parties of
such facts, circumstances or potential problems and recommend that legal counsel be sought.
14. Closing Agent's Fees and Expenses. The closing agent's fee is intended as
compensation for the services set forth in these instructions. If additional services are required
to comply with any change or addition to the parties' agreement or these instructions, or as a
result of any party's assignment of interest or delay in performance, the parties agree to pay a
reasonable additional fee for such services. The parties shall also reimburse the closing agent
for any out-of-pocket costs and expenses incurred by it under these instructions. The closing
agent's fees, costs and expenses shall be due and payable on the closing date or other
termination of the closing agent's duties and responsibilities under these instructions, and shall
be paid one-half by the buyer and one-half by the seller unless otherwise provided in the
parties' agreement.
15. Cancellation. These instructions may be canceled by a written agreement,
signed by all of the parties, and payment of the closing agent's fees, costs and expenses.
Upon receipt of such agreement and payment, the closing agent shall return any money or
documents then held by it to the parties that deposited the same, and shall have no further
duties or responsibilities under these instructions.
16. Inability to Comply With Instructions. If the closing agent receives conflicting
instructions or determines, for any reason, that it cannot comply with these instructions by the
date for closing specified in the parties' agreement or in any written extension of that date, it
shall notify the parties, request further instructions, and in its discretion: (1) continue to perform
its duties and close the transaction as soon as possible after receiving further instructions, or
(2) if no conflicting instructions have been received, return any money or documents then held
by it to the parties that deposited the same, less any fees and expenses chargeable to such
party, or (3) commence a court action, deposit the money and documents held by it into the
registry of' the court, and ask the court to determine the rights of the parties. When the money
and documents have been returned to the parties or deposited into the registry of the court, the
closing agent shall have no further duties or responsibilities under these instructions.
17. Disputes. Should any dispute arise between the parties, or any of them, and/or
any other party, concerning the property or funds involved in the transaction, the closing agent
may, in its sole discretion, hold all documents and funds in their existing status pending
resolution of the dispute, or join or commence a court action, deposit the money and
documents held by it with the court, and ask the court to determine the rights of the parties.
Upon depositing said funds and documents with the court, the closing agent shall have no
further duties or responsibilities under these instructions. The parties jointly and severally
agree to pay the closing agent's costs, expenses and reasonable attorney's fees incurred in
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 4
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
any lawsuit arising out of or in connection with the transaction or these instructions, whether
such lawsuit is instituted by the closing agent, the parties, or any other person.
18. Notices, Approvals, Transmittal. Any notices, declarations, requests,
approvals or authorizations made under these instructions shall be in writing, signed by the
party giving such notices or making such declarations or requests, and personally delivered or
mailed to the closing agent and other parties at their addresses set forth in these instructions.
In its sale discretion, closing agent may accept such notices, declarations, requests, approvals
or authorizations by facsimile or e-mail from a lender, title company or other third party, and
each party agrees to be bound by such notices, declarations, requests, approvals or
authorizations which are transmitted in connection with this transaction.
19. Definitions. Any amendment, addition or supplement to these instructions must
be in writing, signed by the appropriate parties and delivered to the closing agent.
20. Counterparts. These instructions may be executed in one or more counterparts
with like effect as if all signatures appeared on one copy.
21. Effect. These instructions shall bind and benefit the parties, the closing agent,
and their successors in interest.
22. Definitions. When used herein or in any amendment, addition or supplement
hereto, words and phrases are defined and are to be construed as follows:
The words "buyer" and "seller" refer to all persons and entities identified as such by their
signatures on this document, jointly and severally unless otherwise indicated, and shall be
construed interchangeably with other similar terms such as "purchaser," "vendee," "vendor,"
"grantee" or "grantor" as may be appropriate in the context and circumstances to which such
words apply.
The word "Lender" refers to any lending institution or other party, including the seller if
appropriate, that has agreed to provide all or part of' the financing for the transaction or with
which the buyer has made a loan. "Lender" may also refer to a lender who is releasing,
subordinating or allowing assumption of financial encumberance of record.
The phrase "these instructions" refers to time agreements, instructions and provisions
set forth in this document and all amendments, additions and supplements to this document.
The phrase "the property" refers to the real property identified in the parties agreement,
including any other parcel of real property that will be used to secure payment of any obligation
created in the transaction, and does not include any items of personal property unless
otherwise specifically stated in these instructions.
The phrase "outside of' escrow" refers to any duty, obligation or other matter which is
the sole responsibility of the parties or of any party, and for which the closing agent shall have
no responsibility or liability.
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 5
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
In these instructions, singular and plural words, and masculine, feminine and neuter
words, shall be construed interchangeably as may be appropriate in the context and
circumstances to which such words apply.
MATTERS TO BE COMPLETED BY THE BUYER AND SELLER INDEPENDENTLY
Important - Read carefully
The following items must be completed by the parties, OUTSIDE OF ESCROW, and are not
part of the closing agent's duties under these instructions.
Disclosures, Inspection and Approval of the Property. Any required disclosures
concerning the property including, but not limited to, preparation and delivery of any required
Real Property Transfer Disclosure Statement, or inspections or approvals of the property or of
improvements, additions or repairs to the property, will be arranged and completed by the
parties, outside of escrow. The closing agent shall have no liability with respect to the accuracy
of any disclosures made, or for the physical condition of the property,, or any buildings,
improvements, plumbing, heating, cooling, electrical, septic or other systems on the property,
and no responsibility to inspect the property, or to otherwise determine or disclose its physical
condition, or to determine whether any required disclosures have been made, or whether any
required improvements, additions or repairs have been satisfactorily completed.
Personal Property. Any required inspections, approvals or transfers of possession of
any owned or leased fixtures, equipment or other itemsof personal property included in the
transaction, and payment of any personal property, sales or use taxes, will be completed by
time parties outside of escrow. Unless otherwise instructed, the closing agent shall have no
responsibility with respect to such personal property and shall not be required to determine the
status or condition of the title to, encumbrances upon, ownership, or physical condition of such
personal property, nor to calculate, pro -rate, collect, prepare returns for or pay any personal
property tax, sales tax or use tax arising from the transaction.
Utilities. All orders, cancellations, transfers, payments and adjustment of accounts for
water, sewer, garbage collection, electricity, gas, fuel oil, telephone, television cable and any
other utilities or public services will be completed by the parties outside of escrow. Unless
otherwise instructed, the closing agent shall have no responsibility to determine, collect, pay,
pro -rate or adjust charges for installation or service for any utilities or public services, except to
pro -rate existing recurrent assessments for public improvements, if any, which appear on the
title report.
Fire or Casualty Insurance. If a new policy of fire, hazard or casualty insurance on the
property is necessary to close the transaction, the buyer will arrange for the policy to be
issued, outside of escrow, and will provide evidence of the required insurance coverage to the
closing agent before the closing date. Unless otherwise instructed, the closing agent shall have
no responsibility to contract for or obtain any policy of life, hazard or casualty insurance on the
property, or any assignment of such policy.
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 6
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Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
Possession of the Property. The transfer of possession of the property shall be
arranged directly between the parties outside of escrow and shall not be the responsibility of
the closing agent.
Collection Account. If any financing for the transaction will be provided by a private
party, the parties are advised to open a collection account at a financial institution to receive
and disburse payments to be made under the private promissory note or contract, unless
responsibility therefor is accepted by closing agent in writing based on written request of the
parties. The collection account shall be established by the parties outside of escrow and shall
not be the responsibility of the closing agent.
Payment of Omitted Taxes. If any additional real property taxes are assessed for
improvements made to the property that have not been added to the tax rolls before the
closing date, the parties shall pay their respective shares of such omitted taxes, pro -rated as of
the closing date, within 30 days after receipt of notification that such taxes have been
assessed. The closing agent shall not be responsible or liable for any assessment, collection
or payment of omitted taxes.
Individual Taxes. The parties are advised to consult with their attorneys to determine
whether they must report income, deduct expenses or losses, or withhold or pay any income or
business taxes as a result of the transaction. The closing agent shall have no responsibility for
the parties' individual tax consequences arising from the transaction.
Foreign Investment in Real Property Tax Act. If any seller is, or may be, a non-
resident alien or a foreign corporation, partnership, trust or estate for purposes of United
States income taxation, the parties are advised to consult with their attorneys before the
closing date to determine their responsibilities and liabilities, if any, under the Foreign
Investment in Real Property Tax Act (Section 1445 et seq. of the Internal Revenue Code). The
closing agent is not required to verify the nationality or foreign status of any of the seller's, or to
withhold, report or pay any amounts due tinder such act.
Approvals and Permits. The parties are advised to consult with their attorneys to
determine whether any building, zoning, subdivision, septic system, or other construction or
land use permits or approvals will be required, either before or after the closing date. The
closing agent shall have no responsibility with respect to any such permit or approval, and
shall have no liability arising from the failure of any party to obtain, or from the refusal of any
governmental authority to grant any such permit or approval.
Compliance with Certain Laws. The parties are advised to consult with their attorneys
to determine their rights and responsibilities, if any, with respect to disclosures concerning the
condition of the property, or under the Consumer Protection Act, Truth -in -Lending Act,
Interstate Land Sales Act or other similar laws. The closing agent shall have no responsibility
for disclosures concerning the condition of the property, or for the parties' compliance, nor any
liability arising from time failure of any party to comply, with any such requirement or law.
Additional Agreements, Instructions and Disclosures:
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 7
718-01\rhg\yakima cit\congdon orchard\closing agree & instructs
Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
WASHINGTON LAW MAY REQUIRE THE SELLER TO DELIVER A SELLER
DISCLOSURE TO THE BUYER OF IMPROVED, RESIDENTIAL PROPERTY. IF
APPLICABLE, THE DISCLOSURE REQUIREMENTS MUST BE COMPLETED PRIOR TO
CLOSING. BOTH PARTIES ACKNOWLEDGE THE ESCROW AGENT IS NOT
RESPONSIBLE IN ANY WAY FOR PREPARATION OR DELIVERY OF A SELLER
DISCLOSURE FORM. THE PARTIES FURTHER ACKNOWLEDGE THE BUYER DID NOT
DELIVER A NOTE OF RECISSION OF THE SETTLEMENT AGREEMENT. ALL TERMS AND
CONDITIONS OF THE SETTLEMENT AGREEMENT DATED , 2004 ARE
HEREBY SATISFIED.
' BUYER AND SELLER HAVE REVIEWED AND APPROVED THE PRELIMINARY
TITLE REPORT, RECEIVED , AND ALL RESTRICTIONS
(CCRS).
I HAVE HAD ADEQUATE TIME AND OPPORTUNITY TO READ AND UNDERSTAND
THIS CLOSING AGREEMENT AND ESCROW INSTRUCTION AND ALL OTHER
DOCUMENTS REFERRED TO IN THESE INSTRUCTIONS PRIOR TO SIGNING BELOW.
BUYER: SELLER:
City of Yakima Congdon Orchards, Inc.
BY: BY:
DICK ZAIS, CITY MGR.
Date
Buyer's MailingAddress:
129 North Second Street
Yakima, WA 98901
Buyer's Business Phone
509-575-6050
CLOSING AGREEMENT AND ESCROW INSTRUCTIONS - 8
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ITS
Date
Seller's Mailing Address:
Seller's Business Phone
Law Offices
LYON, WEIGAND & GUSTAFSON PS
Lyon Law Offices - 222 North Third Street
P.O. Box 1689
Yakima, Washington 98907
Telephone (509) 248-7220
Fax (509) 575-1883
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of April 19, 2005
ITEM TITLE: Adoption of Resolution to Purchase Property from Congdon
Orchards
SUBMITTED BY: William Cook, Dept. of Community and Economic Development
CONTACT PERSON/TELEPHONE: K. Wendell Adams, P.E., City Engineer
Engineering Division Manager / 575-6111
SUMMARY EXPLANATION:
The City desires to purchase property from Congdon Orchards to allow the adjacent
City property to be contiguous and available for public use. City property is located
both north and south of this strip of property. The property was originally sold to
Congdon Orchard to allow a water supply line to access their orchard. They no longer
need this pipeline and it has been removed. Acquisition of the property would create
uniform ownership and eliminate any controversy over property lines and land uses.
The parcel is 33 -feet wide by approximately 1,320 -feet long as shown on the attached
vicinity map. The cost to purchase this property is $21,327 plus recording fees.
This purchase was not budgeted and is not in an expense attributable to the Washington
Avenue road project. However, during work on the intersection of 48th Avenue and the
new Washington Avenue alignment, it became apparent that acquisition of this narrow
strip of land would provide for the combining of City owned land both north and south
of this parcel. Congdon Orchards has indicated a willingness to sell this strip of land.
In addition, Nob Hill Water has submitted a request to purchase a piece of land from the
City for a new well in the area. This purchase from Congdon would increase the City's
options for a new well site for Nob Hill Water if the Council agrees to their request.
Please note Nob Hill Water's request will be presented to Council at a future date.
Resolution X Ordinance _ Contract Other (Specify) Vicinity Map of Proposed
Purchase
Funding Source City Contingency Funds
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION:
Adopt the resolution.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2005-61