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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 (---,t_ 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 - 1 718-01\rhg\yakima cit\congdon orchard\settlement agreement 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 - 2 718-01 \rhg\yakima cit\congdon orchard\settlement agreement 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 - 3 718-01\rhg\yakima cit\congdon orchard\settlement agreement 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. .pre „r. en ,.aa n;saan,,,c;, c.,., ixA^:•.�:,::e-' q ?„ n ,,,..,..,,en:,sa�aa^x.z says a>o.rea;raaa Hasa mu ann nn a�a�wnonn�snnaunnaa amaaoa eaonanna � NEW WASHINGTON VENUE \ \ \ 4: Tq 1 W1 E s \ e \ / \ / ,f 4 ---t• •'0 , ,11' �� Z if X , ti // 1 f1.. „ . S. 40TH AVE , (n it ferilo 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 - 1 718-01\rhg\yakima cit\congdon orchard\swd 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 - 1 718-01\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 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 - 2 718-01 \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 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 - 3 718-01\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 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 - 4 718-01 \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 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 - 5 718-01\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 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 - 6 718-01 \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 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 - 8 718-01\rhg\yakima cit\congdon orchard\closing agree & instructs 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