590 Acquisition of Bldg. at 106 2nd St. SWCITY OF YELM
RESOLUTION NUMBER 590
ACQUISITION OF BUILDING AND PROPERTY
1062 ND AVENUE, YELM, WASHINGTON
WHEREAS, THE CITY COUNCIL• OF THE CITY OF YELM (THE CITY, FINDS THAT THE
CURRENT CITY HALL AT 105 YELM AVENUE WEST NO LONGER MEETS THE NEEDS OF THE CITY;
AND
WHEREAS, THE FAIRPOINT BUILDING AND ADJACENT COMMERCIAL LAND AT 106 2ND
AVENUE IS AVAILABLE FOR PURCHASE; AND
WHEREAS, IT IS IN THE BEST INTERESTS TO ACQUIRE THE FAIRPOINT BUILDING AND
VACANT LAND IN ORDER TO CONSOLIDATE OPERATIONS, INCREASE EFFICIENCY AND INTEGRATE
SERVICES WITH THE POLICE DEPARTMENT AND COURT; AND
WHEREAS, THE $925,000 COST TO ACQUIRE THE BUILDING WILL BE PAID FOR WITHIN
EXISTING FUNDS, USING SAVINGS FROM THE RECENT REFINANCING OF CITY DEBT, INCREASED
RETURNS ON SHORT-TERM INVESTMENTS AS A RESULT OF IMPROVED FINANCIAL PORTFOLIO
MANAGEMENT, AND CITY RESERVE FUNDS; AND
WHEREAS, THE CITY WILL REPLENISH THE RESERVES OVER A 5 YEAR PERIOD USING
PROCEEDS FROM INTEREST EARNINGS AND CONTINUED COST SAVINGS;
NOW, THEREFORE, BE IT RESOLVED BY THE YELM CITY COUNCIL, THAT THE CITY OF YELM
SHALL PROCEED TO ACQUIRE THE FAIRPOINT BUILDING, LOCATED AT 106 2ND AVENUE, YELM,
WASHINGTON, PURSUANT TO THE OFFER FOR SALE OF THE PROPERTY, PREVIOUSLY RECEIVED
BY THE CITY OF YELM, AND THE CITY IS HEREBY AUTHORIZED TO EXECUTE ANY CONTRACTS OR
OTHER INSTRUMENTS NECESSARY TO SAID ACQUISITION.
APPROVED nd day of May, 2018.
J Foster, Major
ATTEST:
L ri Mossman, City Clerk
EXHIBIT A
PURCHASE AND SALE AGREEMENT
REAL ESTATE PURCHASE AGREEMENT
A
This Real Estate Purchase Agreement (this "Agreement"), dated March, 2018, is
between the City of Yelm, a Washington municipal corporation ("Buyer"), and DUST, LLC, a
Washington limited liability company, ("Seller").
1. Background.
Seller is the Owner of improved real property comprised of four (4) parcels in Yelm,
Thurston County, Washington whose legal descriptions are set forth in Exhibit A, attached hereto
(the "Property"). Buyer has expressed an interest in purchasing the Property on the terms provided in
this Agreement, and Seller has indicated that it is willing to sell the Property to Buyer on such terms.
Seller has agreed that before purchasing the Property, Buyer will be given an opportunity to evaluate
the condition of the Property and arrange for financing, and that Buyer may terminate its obligation
to complete the purchase of the Property if Buyer is dissatisfied with the results of the evaluation or
is unable to secure financing.
2. Agreement to Purchase.
Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, all of the following
property (collectively, the "Property"):
(A) the tract of land described in Exhibit A to this Agreement and all related rights and
appurtenances, including all right, title and interest of Seller in and to any land lying in the bed or
any street, road, highway or alley (whether opened or proposed) adjoining -any such tract,. any water
or water rights benefitting any such tract and any stock evidencing any such water rights, any oil, gas
or other minerals laying under any such tract, any easements benefitting any such tract and any strips
and gores adjoining any such tract (the "Land") that Seller owns;
(B) all buildings, structures, parking areas, sidewalks, landscaping, other improvements and
fixtures located on the Land (collectively, the "Improvements") and all right, title and interest of
Seller in improvements, if any, located off the Land that provide service to the Land or the
Improvements;
(C) all furniture, fixture, equipment, machinery, building materials, supplies, inventory and
other tangible property (collectively, "Personalty"), it being understood that the Personalty does not
include furniture, fixtures, equipment or machinery that is leased by Seller:
(D) all right, title and interest of Seller in, to and under all Service Contracts that Buyer
notifies Seller during the Review Period it is willing to accept, together with Seller's rights with
respect to all deposits by or for the account of Seller under the Service Contracts that are assigned to
Buyer; and
Real Estate Purchase Agreement
The transfer of the Property contemplated by this Agreement is referred to in this Agreement as the
"Purchase". As used in this Agreement, "Service Contracts" means all contracts to which Seller is a
party relating to the operation, maintenance or management of the Properly (including all agreements
for electric, gas, telephone, cable television, security alarm monitoring, sewer, trash collection or
similar services, all supply contracts, all collective bargaining agreements and labor and employment
contracts, if any, and all brokerage and leasing agreements).
3. Purchase Price.
The purchase price to be paid by Buyer for the Property (the "Purchase Price") is Nine
Hundred Twenty-fiveThousand and 00/100 dollars ($925,000.00).
4. Earnest Moln
Buyer shall deposit the sum of Twenty-five Thousand Dollars, ($25,000) in the form of a Promissory
Note for said $25,000 due upon removal of the contingencies as specified herein, deposited as
earnest money and as part payment on the purchase price of the Property. The Promissory Note and
funds deposited are referred to in this Agreement as the "Earnest Money." Unless otherwise specified
by mutual agreement, all Earnest Money will be applied as a credit against the Purchase Price if
Close of Escrow occurs. If Buyer defaults in its obligation to complete the Purchase, all Earnest
Money may be retained by Seller as provided in Section 12 (A). If Buyer terminates its obligation to
complete the Purchase pursuant to a termination right allowed by this Agreement, the Earnest Money
will be applied as provided in the provision of this Agreement that allows the termination right.
Seller agrees to return to Buyer the Earnest Money received by Seller if required by this Agreement,
together with interest at the rate of 12% per annum (or the maximum amount allowed by law, if less)
if payment is not made within 10 days.
5. Close Of Escrow.
(A) The purchase of the Property will be completed through an escrow to be opened with
Stewart Title Company, (the "Title Company"). The escrow will be opened upon deposit with the
Title Company of a copy of this Agreement executed by Buyer and Seller. Subject to any extension
mutually agreed to between the Parties, the Close of Escrow will take place on or before 30 days
after the end of the Review Period. The date for Close of Escrow is referred to in this Agreement as
the "Scheduled Closing Date. As used in this Agreement, "Close of Escrow" means the recording of
the Deeds (as defined below) by the Title Company in accordance with Section 5(C).
(B) Prior to Close of Escrow, Seller will deposit with the Title Company the following items
(collectively the "Seller Documents"):
(1) A statutory warranty deed, duly executed and acknowledged, conveying to Buyer
the Property (the "Deed");
(2) one or more bills of sale, duly executed, conveying the Personalty to Buyer;
Real Estate Purchase Agreement 2
(3) one or more assignments, duly executed, conveying to Buyer all right, title and
interest of Seller in, to and under all Service Contracts that are to be assigned to Buyer in accordance
with Section 2, and Seller's rights with respect to all deposits by or for the account of Seller under
the Service Contracts assigned to Buyer;
(4) such documents as the Title Company may require to establish the authority of
Seller to complete the Purchase;
(5) a certificate, dated the date or close of Escrow and executed by Seller, (a) stating
that the representations and warranties made by Seller in Section 9 or this Agreement were correct
and complete when made and (b) either stating that the representations and warranties made by Seller
in Section 9 of this Agreement are correct and complete on the date of the certificate as if made again
on that date or specifying the reason that such statement cannot be made;
,(6) an affidavit, dated the date of Close of Escrow and executed by an appropriate
representative of Seller under penalty of perjury, stating that Seller is not a person with respect to
whom withholding is required under Section 1445 of the Internal Revenue Code; and
Prior to Close of Escrow, Buyer will deposit with the Title Company:
(1) the Purchase Price, net of credits and prorations and other items charged or
credited to Buyer in accordance with this Agreement; and
(2) an instrument, duly executed by Buyer, assuming Sellers' obligations under (i) all
Leases and (ii) all Service Contracts assigned to Buyer (the "Assumption").
Documents and funds deposited in escrow under this Section 6 will be returned to the person who
deposited them if Seller or Buyer terminates its obligation to complete the Purchase under
circumstances allowed by this Agreement subsequent to the time when the deposit is made.
(C) The Title Company will close escrow on the Scheduled Closing Date if all of the
conditions to Buyer's obligation to purchase the Property contained in this Agreement have been
satisfied by taking the following actions:
(1) The Title Company will deliver the Deed for recording, with instructions to
deliver the Deed to Buyer after recording.
(2) The Title Company will deliver to Buyer (i) all seller Documents (other than the
Deed) and (ii) the Title Policy.
(3) The Title Company will deliver the Assumption to Seller.
(4) The Title Company will pay to Seller the Purchase Price, net of prorations and
other items (including amount required to pay-off liens) charged or credited to Seller in accordance
with this Agreement.
Real Estate Purchase Agreement 3
(D) Simultaneously with the Close of Escrow, Seller will deliver to Buyer, outside of the
closing escrow, originals of (i) all Service Contracts, (ii) keys for all locks in the Improvements in
the possession of Seller or its agents and an identification of other persons to whom Seller or its
agents have delivered keys, (iii) certificates of occupancy allowing occupancy and operation or the
Property as now occupied and operated, and all documents evidencing other permits, licenses,
approvals, utility rights, development rights and similar rights related to the Property, if any, whether
granted by governmental authorities or private persons, (iv) all Leases and all guaranties of Leases
and (v) all warranties and guaranties covering all or any part of the Property that Seller has.
6. Review Period.
(A) To assist Buyer in evaluating the Property, Seller will deliver to Buyer within ten
business days after the date of this Agreement, the following (collectively, the "Review Materials"):
(1) An ALTA Form 2006 Owner's Title Insurance Policy preliminary title reports,
issued by the Title Company, indicating the condition of title to the Property ("Title Report"),
accompanied by a website link to or electronic legible copies of all documents listed as exceptions to
coverage in the Title Report.
(2) Copies of (i) all Service Contracts, (ii) all documents evidencing permits, licenses,
approvals, utility rights, development rights and similar rights related to the Property, if any, whether
granted by governmental authorities or private persons and (iii) all warranties and guaranties
covering all or any part of the Property.
(3) A copy of any appraisal of the Property in the possession of Seller or any of its
affiliates or Seller's property manager.
(4) A list of the Personalty.
(5) Any "as built" plans and specifications for Improvements in the possession of
Seller or any of its affiliates or Seller's property manager.
(6) A copy of any survey of the Land and/or the Improvements for the Property's
Development that is in the possession of Seller or any of its affiliates or Seller's property manager.
(7) Copies of all engineering, soils and similar reports relating to the property that are
in the possession of Seller or any of its affiliates or Seller's property manager.
(8) Copies ofall environmental reports and test results for the property orneighboring
property performed by or for Seller or any of its affiliates or Seller's property manager (with
permission from applicable consultants for Buyer to use and rely on such reports and test results);
copies of all information relating to environmental matters provided to Seller or any of its affiliates
by any previous owner of the Property or neighboring property; and copies of all other information
relating to the environmental condition of the property that is in the possession of Seller or any of its
Real Estate Purchase Agreement 4
affiliates or Seller's property manager.
(9) Copies of any building inspection reports (whether by governmental authorities,
private consultants or personnel employed by Seller or its affiliates or Seller's property manager) for
the Property that are in the possession of Seller or its affiliated or Seller's property manager.
(10) Searches by the Title Company of the Uniform Commercial Code filings for the
State of Washington and the county in which the Property is located under the name of the Seller and
any other person who owned the Property within the last five years.
In addition,. Seller will make available for inspection by Buyer, and if Buyer elects allow Buyer to
make copies of, (i) all insurance policies carried by Seller with respect to the Property, (ii) all utility
bills for the Property and (iii) all other books and records relating to the Property or its development,
construction, operation, maintenance or management.
(B) Buyer may terminate its obligation to complete the Purchase at any time during the 60day
period commencing on the date of this Agreement (the "Review Period") if Buyer, in its sole and
absolute discretion, is not satisfied with the Property or any matter relating to the Property, including,
but not limited to, the physical condition of the Property, the Property's operating history, the results
of an appraisal of the property, or the Property's prospects. Buyer may exercise its right under this
Section 6(B) by giving Seller written notice at any time during the Review Period. If necessary to
receive an appraisal, Buyer shall be entitled to extend the Review Period for a period of up to an
additional thirty (30) days, upon notice and written mutual agreement with Seller prior to the
expiration of the initial 60 -day review period.
(C) Buyer and'its representatives; constiltants, and contractors may enter upon the Property at
any time and make inspections and tests (including soils borings and environmental tests) regarding
the property as Buyer deems necessary or desirable; provided that entry into occupied residential
units will not be permitted within the first 30 days after the date of this Agreement. Buyer will give
Seller 24 hours advance notice before it or any of its representatives, consultants or contractors enter
upon the Property. Damages to the Property resulting from any inspection or testing conducted by or
at the direction of Buyer will be repaired by Buyer so that the Property is restored as nearly as
possible to its original condition, Buyer will indemnify, defend and hold harmless Seller against any
claim arising out of activities conducted at the Property pursuant to this Section 6(C) by Buyer and
its representatives, consultants, and contractors and related damage, cost or expense (including fees
and disbursements of attorneys and other professionals and court costs), unless the claim results from
the negligence or misconduct of Seller or pre-existing defects or Hazardous Materials (as defined
below).
Real Estate Purchase Agreement
7. Title and Title Insurance.
(A) Within 15 days after receiving a Title Report for the Property, Buyer will notify Seller of
any proposed exception to coverage to which Buyer objects, Buyer will be deemed to have accepted
any proposed exception listed in the Title Report to which it makes no objection within such 15 -day
period. Within 5 days after receiving Buyer's objections, Seller will notify Buyer of which objections
it will cure. Unless Seller agrees to cure all objections raised by Buyer, Buyer may terminate its
obligation to complete the Purchase by giving written notice to Seller within 10 days after receiving
Seller's response to its objection notice. If Buyer exercises its termination right under this Section
7(A), Seller will be entitled to retain all Earnest Money previously paid to Seller by Buyer. If Buyer
does not exercise a termination right in accordance with this Section 7(A), Buyer will be deemed to
have waived the objections raised by it, except for those objections relating to matters that Seller has
agreed to cure. Seller will be obligated that it indicates it will cure in its response to Buyer's
objection notice.
(B) Seller must convey good, marketable and indefeasible fee simple title to the Land and the
Improvements, flee and clear of all easements, rights-of-way, encumbrances,. liens, restrictions,
conditions, assessments, leases or other clouds on title, except Permitted Exceptions (as defined
below), and good and marketable title to all other Property, free and clear of all liens, restrictions,
conditions, assessments, leases, adverse claims or other clouds on title. As used in this Agreement,
"Permitted Exceptions" means (i) the exceptions listed in the Title Report (excluding any general
exceptions), except matters that Seller is obligated by Section 7(A) or 7(D) to remove, and (ii) ad
valorem taxes that are not due on or before the Scheduled Closing Date. Buyer may terminate its
obligation to complete the Purchase if, after its initial issuance, the Title Report to modified to add
any exception, or to change any previously existing exception, in a manner that is unacceptable to
Buyer; in its discretion; provided that before exercising such termination option, Buyer will give
Seller notice of its objection to any such matter and allow Seller 30 days (or until the Scheduled
Closing Date, if sooner) in which to cure the objectionable matter. Conditions and requirements
listed in the Title Commitment will not be Permitted Exceptions.
(C) Seller will cause the Title company to issue to Buyer an owner's extended coverage title
insurance policy (the "Title Policy") with respect to the Land and the Improvements, insuring that
Buyer holds good, marketable and indefeasible fee simple title to the Land and all Improvements and
the easement rights under any easement befitting the Land or the Improvements. The Title Policy
must be in the amount of the Purchase Price allocable to real property (as specked in Section 3),
must be issued to Buyer at the time of the Close of Escrow, must contain as exceptions to coverage
only the Permitted Exceptions and any general exceptions common to the form of policy, and must
contain such endorsements as buyer specifies based an its review of title, Seller will pay the portion
of the premium for the Title Policy that equals the premium that would be charged for standard
coverage policy with coverage in a like amount, and Buyer will pay the portion of the premium
attributable to upgrade of the Title Policy to extended coverage and the premium for all
endorsements to the Title Policy.
Real Estate Purchase Agreement 6
(D) Prior to Close of Escrow, Seller (i) will discharge all liens (including tax liens, liens for
assessments and inchoate liens) encumbering the Property or any part of the Property, except liens
for ad valorem taxes that are not yet due, (ii) will pay all amounts due under or in connection with all
Service Contracts and all permits, licenses, approvals, utility rights, development rights and similar
rights related to the Property, if any, whether granted by governmental authorities or private persons
and (iii) will satisfy all conditions and requirements in the Title Report and all other requirements of
the Title Company for closing or issuance of the Title Policy as required by this Agreement. Seller
may use moneys that otherwise would be paid to it from escrow to satisfy its obligations under this
Section 7(D) as long as all conditions to Close of Escrow have been satisfied or will be satisfied by
payment of those moneys. In the event any assessments are levied upon the property prior to closing,
Buyer shall assume such obligations at closing. Assessments shall mean government imposed
assessments for all properties in the area for business district imrpovements, road improvements or
utility infrastructure improvements.
8. CIosulg Costs and Prorations.
(A) Buyer will pay one-half of any escrow fee charged by the Title Company and the sales tax
due upon transfer of personal property that is part of the Property. Seller will pay all recording fees,
all real property transfer taxes, and one-half of any escrow fee charged by the Title Company. Buyer
and Seller each will pay its own attorneys' fees. Other costs will be paid by Seller or Buyer, as
applicable, as specified by other provisions of this Agreement or, if no provision is made in this
Agreement, in accordance with local custom.
(B) Seller and Buyer will prorate, effective as of the first day on which Close of Escrow
occurs, all ordinary course expenses of operation of the Property (including utilities, ad valorem
taxes and assessments, property owners association assessments or dues, if any, and charges under
service contracts assigned to Buyer), except for insurance premiums and expenses for service
contracts not assigned to Buyer. Foi purposes of prorations, Buyer will be treated as the owner of the
Property for the day on which Close of Escrow occurs. If, at the time of the Close of Escrow, the tax
rate or the assessed valuation of Property has not been fixed, the apportionment of taxes for such
Property will be based upon the most recently established tax rate applied to the latest assessed
valuation. If any other expense cannot be determined finally as of Close of Escrow, such expense
will be prorated based on the best available information. Adjustments to the prorations will be made
from time to time after Close of Escrow, upon demand of either Buyer or Seller, to take account of
final information as to taxes and assessments or other expenses estimated as of Close of Escrow or to
adjust expenses that were not included in the prorations done at the Close of Escrow, and Buyer or
Seller, as applicable, will pay the other such amounts as may be appropriate based on such
adjustments, together with interest at 12% per annum on any amount due that remains unpaid more
than ten days after demand.
Real Estate Purchase Agreement
9. Representations and. Warranties.
(A) As a basis for Buyer's purchase of the Property, and in order to induce Buyer to enter into
this Agreement and to complete the Purchase, Seller represents and warrants to Buyer as follows:
(1) Each entity that is a part of Seller (i) has been duly organized and is validly
existing under the laws of the State of Washington, (ii) is in good standing in the State of
Washington, (iii) has the power under its organizational documents and the limited liability company
laws of the State of Washington to enter into this Agreement, to perform its obligations under this
Agreement and to complete the Purchase as contemplated by this Agreement and (iv) subject to
Section 11(B), has taken all action necessary under its organizational documents and the limited
liability company laws of the State of Washington to authorize the execution and delivery of this
Agreement, the performance by it of its obligations under this Agreement and the completion of the
Purchase as contemplated by this Agreement.
(2) This Agreement has been duly executed and delivered by Seller and subject to
Section 11(B), constitutes a valid, binding and enforceable obligation of Seller, subj ect to bankruptcy
and other debtor relief laws.
(3) The execution and delivery ofthis Agreement by Seller, the performance by Seller
of its obligations under this Agreement and the completion of the Purchase as contemplated by this
Agreement will not result in (i) a breach of, or a default under, any contract, agreement, commitment
or other document or instrument to which Seller is party or by which Seller or any Property is bound
or (ii) a violation of any law, ordinance, regulation or rule of any governmental authority or any
judgment, order or decree of any court or governmental authority.
(4) There is no action, suit, proceeding, inquiry or investigation (including any
bankruptcy or other debtor relief proceeding or any eminent domain proceeding) pending or, to the
knowledge of Seller, threatened by or before any court or governmental authority (i) against or
affecting any Property or arising out of the development, construction, operation, maintenance or
management of any Property or (ii) that would prevent or hinder the performance by Seller of its
obligations under this Agreement or the completion of the Purchase as contemplated by this
Agreement.
(5) Subject to Section 11(B), except for consents, approvals, authorizations and filings
already completed, Seller is not required to obtain any consent, approval or authorization from, or to
make any filing with, any governmental authority or private person in connection with, or as a
condition to, the execution and delivery of . this Agreement, the performance by Seller of its
obligations under this Agreement or the completion of the Purchase as contemplated by this
Agreement.
(6) To the knowledge of Seller, the Property and the design, construction, operation
and occupancy of the Property comply with all laws, including all building codes and laws relating to
zoning, subdivision and access by the disabled. To the knowledge of Seller, Seller has obtained, and
there are currently in force, all consents, licenses, permits, approvals and authorizations of
Real Estate Purchase Agreement
governmental authorities that are necessary for the operation and occupancy of the Property, and
Seller has received no notice and has no knowledge of any proceeding, inquiry or investigation
directed toward the revocation or any of such consents, licenses, permits, approvals and
authorizations. Seller has not received notice from any governmental authority alleging a violation of
any law in connection with any Property or the design, construction or current or intended operation
or occupancy of any Property.
(7) To the knowledge of Seller, the Property, as operated and occupied, is not a
nonconforming use tinder existing zoning laws. To the knowledge of Seller, the Property does not
depend on other property to satisfy applicable requirements under any zoning or subdivision law. To
the knowledge of Seller, Seller is not obligated to make any improvement to the Land or the
Improvements or to public facilities under any agreement with a governmental authority, nor is Seller
obligated to maintain or to contribute toward the maintenance of any public facilities or other off-site
improvements or facilities under any agreement with a governmental authority, to the knowledge of
Seller, all fees and obligations imposed by governmental authorities in connection with the
development of the Improvements or the issuance of consents, licenses, permits, approvals and other
authorizations necessary for development of the Improvements have been paid and satisfied.
(8) Except as otherwise indicated in herein, the Property consists of tax parcels
identified in Exhibit A.
(9) To the.knowledge_ of Seller, the Improvements were constructed in a good and
workmanlike manner, in accordance with all applicable laws and applicable restrictive covenants, if
any, and in substantial accordance with all plans and specifications to be delivered to Buyer pursuant
to Section 6(A). To the. knowledge of Seller, the Improvements comply with, or are exempt from, the
design and construction standards requirements of the Americans with Disabilities Act and the Fair
Housing Amendment Act of 1988. To the knowledge of Seller, the Improvements and the Personalty
have no structural defect or other material defect ordinary wear and tear excepted.
(10) To the knowledge of Seller, except as indicated in Schedule 4, the Property is
serviced by utilities with capacity sufficient for the Property, as operated and occupied or intended to
be operated and occupied. To Seller's knowledge, all utility facilities providing service to the
Property is in good working order and repair. No suspension or curtailment of utility services is
threatened.
(11) To the knowledge of Seller no part of the Land lies within any area designated as
a flood prone area or an area subject to flooding under the Flood Disaster Protection Act of 1973 or
any other federal, state or local governmental rules, policy or practice. To the knowledge of Seller,
classification of the Land as outside of a flood zone is not dependent on levees or other flood control
improvements. To the knowledge of Seller, the Property is not located in a historical district, nor has
the Property been designated by any governmental authority as having historical significance. To the
knowledge of Seller, the Property has not been designated by any governmental authority as an
environmentally -sensitive site, and the Property is not located in a "border zone" area or other area
having special designation because of proximity to an environmentally -sensitive site.
Real Estate Purchase Agreement 9
(12) To the knowledge of Seller, no Hazardous Material (as defined below) is present
on the Land, or in the soil, soil vapor or ground water under the Land. To the knowledge of Seller,
the Improvements are free from Hazardous Materials, including asbestos, polychlorinated biphenyls
(PCB's), lead-based paint and urea formaldehyde foam insulation, except as indicated in Schedule 5
to this Agreement. To the knowledge of Seller, the Land has never been used for processing,
treatment, generation, production, disposal or storage of Hazardous Materials. As used in this
Agreement, "Hazardous Materials" means (i) any substance that constitutes hazardous material,
hazardous waste or toxic waste within the meaning of any environmental protection or similar law or
that otherwise is subject to regulation under any environmental protection or similar low and (ii)
regardless of whether it is so classified, any radioactive material, 'any medical waste, asbestos,
polychlorinated biphenyls (PCB's), lead-based paint, urea formaldehyde foam insulation and
petroleum or petroleum derivatives. The environmental laws applicable under this paragraph include
the Comprehensive Environmental Response, Compensation and Liability Act, as amended; the
Hazardous Materials Transportation Act, as amended; the Resource Conservation and Recovery Act,
as amended; the Toxic Substances Control Act, as amended; the Federal Water Pollution Control
Act, as amended similar laws of the State of Washington; and all regulations, rules, policies and
interpretations issued under any of the foregoing.
(13) Seller is the record and beneficial owner of all of the Property, and no other
person owns any fee interest in the Land or the Improvements or any interest in the other Property.
No person other than Seller has a possessory right or right of occupancy with respect to any of the
Land or the Improvements. There is no option or similar right for purchase of any Property.
(14) To the knowledge of Seller, Seller has performed all of its obligations under all
Service Contracts, and there is no default or event of default by Seller under any Service Contract
and no event or circumstances that, with the passage of time or the giving of notice; or both, would
constitute a default or event of default by Seller under any Service Contract.
Seller will indemnify, defend and hold harmless Buyer from and against any loss, damage, liability,
obligation, claim, suit, cause of action, judgment, settlement, penalty, cost or expense (including fees
and disbursements of attorneys and other professionals and court cost) suffered or incurred by Buyer
as a result of any statement in the representations and warranties made in this Section 9A) that is
incorrect as of the date or this Agreement or the failure by Seller to advise Buyer of any fact known
to Seller which is necessary to prevent any representation or warranty contained in this Section 9(A)
from being misleading as of the date of this Agreement. Seller will notify Buyer promptly upon
learning of any circumstance or event that makes any of the representations and warranties in this
Section 9 (A) incorrect or misleading as of the date of this Agreement or as of any time thereafter
through Close of Escrow.
(15) Buyer acknowledges that Seller's representation and'warranties are based on
limited knowledge as Seller has never occupied nor leased the Property.
Real Estate Purchase Agreement 10
(B) In order to induce Seller to enter into this Agreement and to complete the Purchase,
Buyer represents and warrants to Seller as follows:
(1) Buyer has been duly organized and is validly existing under the laws of the State
of Washington. Buyer is in good standing in the State of Washington. Buyer has the corporate power
to enter into this Agreement, to perforin its obligations under this Agreement and to complete the
Purchase as contemplated by this Agreement. Buyer has taken all corporate action necessary to
authorize the execution and delivery of this Agreement, the performance by Buyer of its obligations
under this Agreement and the completion of the Purchase as contemplated by this Agreement.
(2) This Agreement has been duly executed and delivered by Buyer and constitutes a
valid, binding, and enforceable obligation of Buyer, subject to bankruptcy and other debtor relief
laws.
(3) The execution and delivery of this Agreement by Buyer, the performance by Buyer
of its obligations under this Agreement and the completion of the Purchase as contemplated by this
Agreement will not result in (i) a breach of, or a default under, any contract, agreement, commitment
or other document or instrument to which Buyer is party or by which Buyer is bound or (ii) a
violation of any law, ordinance, regulation or rule of any governmental authority applicable to Buyer
or any judgment, order or decree of any court or governmental authority that is binding on Buyer.
(4) There is no action, suit, proceeding, inquiry or investigation (including any
bankruptcy or other debtor relief proceeding) pending or, to the knowledge of Buyer threatened,
against Buyer by or before any court or governmental authority that would prevent or hinder the
performance by Buyer of its obligations under this Agreement or the completion of the Purchase as
contemplated by this Agreement.
Buyer will indemnify, defend and hold harmless Seller from and against any loss, damage, liability,
obligation, claim, suit, cause or action, judgment, settlement, penalty, cost or expense (including fees
and disbursements of attorneys and other professionals and court costs) suffered or incurred by Seller
as a result of any statement in the representations and warranties made in this Section 9 (B) that is
incorrect as of the date of this Agreement or the failure by Buyer to advise Seller of any fact known
to Buyer which is necessary to prevent any representation or warranty contained in this Section 9(B)
from being misleading as of the date of this Agreement. Buyer will notify Seller promptly upon
learning of any circumstance or event that makes any of the representations and warranties in this
Section 9(B) incorrect or misleading as of the date of this Agreement or as of any time thereafter
through Close of Escrow.
(C) The respective representations and warranties made by Seller and Buyer in this Section 9
and the respective indemnity obligations of Seller and Buyer under this Section 9 will survive Close
of Escrow and recording of the Deeds, but only for a period of one year (90 days in the case of
Seller's representation in Section 9(A)(14) and any related warranty or indemnity by Seller), and any
action on any such representation, warranty or indemnity obligation will be barred unless the related
claim against Seller or Buyer, as applicable, is asserted hi writing against the other party within such
period.
Real Estate Purchase Agreement 11
10. Pre -Closing, Obligations.
(A) Seller agrees that it will maintain all insurance in effect as of the date of this Agreement
with respect to the Property until the earlier or the Close of Escrow or the termination by Buyer or
Seller of its obligation to complete the Purchase.
(B) Seller agrees that it will continue to operate and maintain the Property in accordance with
reasonable business practices and its past policies and practices until the earlier of the Close of
Escrow or the termination by Buyer or Seller of its obligation to complete the Purchase.
(C) Until the earlier of the Close of Escrow or the termination by Buyer of Seller of its
obligation to complete the Purchase, Seller will not (i) enter into any Service Contract that will be
binding upon Buyer or the Property after Close of Escrow, or amend, terminate or otherwise modify
any existing service Contract or (ii) grant, create or allow the creation of any easement, right-of-way,
encumbrance, lien, restriction, condition, assessment or other cloud on title which affects the
Property, or amend, extend or otherwise modify the terms of any existing easement, right-of-way,
encumbrance, lien, restriction, condition, assessment or other cloud on title which affects the
Property.
11. Conditions.
(A) Buyer's obligation to- complete the Purchase is conditioned on satisfaction of the
following conditions:
(1) all representations of Seller contained in Section 9 of this Agreement are accurate
and complete in all respects at the time of the close or Escrow as if made again at that time;
(2) Seller performs all of the obligations to be performed by it under this Agreement
at or before the time of the Close of Escrow, including delivering title to the Property in the
condition required by Section 7; and
(3) the Title Company is: prepared to issue the Title Policy conforming to the
requirements of Section 7(C).
(4) City Council approval prior to the expiration of the Review Period.
If the conditions in this Section 11 (except for 11(4)) are not satisfied by the Scheduled Closing Date
(as extended pursuant to Section 16 if applicable), Buyer may terminate its obligation to complete
the Purchase of the Property. If Buyer terminates its obligation to complete the Purchase pursuant to
this Section 11, Buyer will be entitled to a refund of all Earnest Money. After removal of the Review
Period contingency, Buyer's Earnest Money Promissory Note shall be due and payable and all
Earnest Money shall become non-refundable.
Real Estate Purchase Agreement 12
12. Remedies.
(A) If Buyer fails to purchase the Property in violation of this Agreement, then Seller, as its
sole and exclusive remedy, may terminate its obligation to complete the Purchase and, upon so
doing, will be entitled to retain the Earnest Money as liquidated damages. Seller specifically waives
all remedies not provided for in this Section 12(A).
(B) If Seller fails to perform its obligations to convey the Property to Buyer, Buyer may
enforce specific performance, or Buyer may terminate its obligation to complete the Purchase, or if
Seller's failure of performance is due to Seller's sale of the Property (or any significant portion ofthe
Property) to a person other than Buyer or Seller's encumbrance of the Property with one or more
liens not existing on the date of this Agreement or any other willful breach of Seller, Buyer may
bring an action for damages against Seller. All Earnest Money will be returned to Buyer upon
commencement by Buyer of any action to enforce Seller's performance under this Agreement or any
election by Buyer to terminate its obligation to complete the Purchase under this Section 12(B).
(C) Seller and Buyer acknowledge that Seller's damage would be difficult or impossible to
ascertain in the event of Buyer's default in its obligation to purchase the Property and that the
liquidated damages provided for in Section 12 (A) are a reasonable estimate of Seller's damages.
Seller and Buyer acknowledge that the amount of the liquidated damages has been set taking into
account various factors, including the potential for change in value of the Property.
(D) Except as otherwise specifically provided in this Agreement, all remedies provided for in
this Agreement or available as a matter of law (whether at law, in equity, by statute or otherwise) are
cumulative and may exercised concurrently or consecutively, in such order as a party may elect.
No remedy is intended to be exclusive unless specifically provided in this Agreement.
13. Assignment.
Buyer may assign this Agreement and its rights under this Agreement to, any entity for which
one or more of Buyer's shareholders, either directly or indirectly, have control over day-to-day
management decisions. Except as allowed by the preceding sentence, neither Buyer nor Seller may
assign this Agreement or its rights under this Agreement.
14. Brokerage.
Buyer hereby represent and warrant to Seller that other than Ryan Dunne if Summit
Properties, it has not dealt with any broker, finder or other agent in connection with this Agreement
or the transaction contemplated hereby. Seller acknowledges the Property is listed with Colliers
International and Seller is responsible for all sales commissions' due as a result of or arising out of,
this transaction. Each party hereby agrees to indemnify the other party for any claim for brokerage
commission or finder's fee asserted by a person, firm or corporation claiming to have been engaged
by the indemnifying party.
Real Estate Purchase Agreement 13
15. Possession.
Seller will deliver possession of the Property to Buyer at the time of Close of Escrow.
16. Casualty and Condemnation.
(A) Risk of loss of or damage to the property shall be borne by Seller until the closing date,
Thereafter, Buyer shall bear the risk of loss. In the event of material loss of or material damage to the
property prior to the closing date, Buyer may terminate this agreement by giving Seller written notice
within ten (10) days of notification to Buyer of such loss or damage.
(B) If, prior to the closing date, all or a material part of the Property is taken or threatened
with taking by the power of eminent domain, then Buyer may, by written notice to Seller within ten
(10) days of the date of notification to Buyer of such taking or threat thereof, elect to terminate this
Agreement. If such taking makes it impossible for Seller to perform its obligations hereunder, Seller
may elect to terminate this Agreement by written notice given to Buyer prior to closing.
17. Allocation of Liabilities.
(A) Buyer's acquisition of the Property may not be construed as an implied assumption by
Buyer of any obligation or liability of Seller. Buyer expressly disclaims that it is a successor to
Seller's business, the essence of the Purchase being an acquisition by Buyer of assets and not an
acquisition of Seller's business. Buyer will not be reasonable for satisfaction of any of Seller's
obligations and liabilities, except to the extent that Buyer expressly assumes such obligation or
liability pursuant to this Agreement. Except.for obligations and liabilities expressly assumed by
Buyer; Seiler will remain liable for' all of its obligations -and liabilities in connection with the
Property, and Seller agrees to satisfy all of its obligations and liabilities on atimely basis and without
recourse to Buyer or the Property.
(B) Seller agrees to indemnify, defend and hold harmless Buyer, each person who holds a
direct or indirect ownership interest in Buyer, Buyer's property manager and their respective officers,
directors, agents, employees and affiliates from and against any loss, damage, liability, obligation,
claim, suit, cause of action, judgment, settlement, penalty, fine or cost or expense (including fees and
disbursements of attorneys and other professionals and court costs) arising out of or related to (i) any
activity or event involving the Property and occurring before Close of Escrow, (ii) failure of seller to
perform any obligation under any Cease or service Contract prior to Close of Escrow, (iii) the
forfeiture of all or any part of the Property as a result or the violation by Seller, any person who holds
a direct or indirect ownership interest in Seller, Seller's property manager or their respective officers,
directors, agents, employees and affiliates of any law which provides for civil or criminal forfeiture
and (iv) any Rent or Deposit received by Seller prior to Close of Escrow and not returned to the
tenant, properly applied against the tenant's obligations or credited to Buyer; provided that, except to
the extent that Seller has knowledge of the same as of the date of this Agreement or obtains
knowledge of the same after the date of this Agreement and prior to Close of Escrow and fails to
notify Buyer of such circumstance prior to Close of Escrow Seller will have no liability to Buyer, any
person who holds a direct or indirect ownership interest in Buyer, Buyer's property manager or their.
Real Estate Purchase Agreement 14
respective officers, directors, agents, employees and affiliates from and against any lose, damage,
liability, obligation, claim, suit, cause of action, judgment, settlement, penalty, fine or cast or
expense arising out of or related to (i) any Hazardous Material on the Land, or in the soil, soil vapor
or ground water under the Land, or in the Improvements Or (ii) the physical condition of the Property
or defects in the Property.
(C) Buyer agrees to indemnify, defend and hold harmless Seller, each person who holds a
direct or indirect ownership interest in Seller .and their respective officers, directors, agents,
employees and affiliates from and against any loss, damage, liability, obligation, claim, suit, cause of
action, judgment, settlement, penalty, fine or cost or expense (including fees and disbursements of
attorneys and other professionals and court costs) arising out of or related to (i) any activity or event
involving the Property and occurring after Close of Escrow or (ii) failure of Buyer to perform any
obligation under any Lease or Service Contract that is assumed by Buyer pursuant to this Agreement;
provided that Buyer will have no liability to Seller, any person who holds a direct or indirect
ownership interest in Seller or their respective officers, directors, agents, employees and affiliates
from and against any loss, damage, liability, obligation, claim, suit, cause of action, judgment,
settlement penalty, fine or cost or expense arising out of or related to (i) any Hazardous Material on
the Land, or in the soil, soil vapor or ground water under the Land, or in the Improvements, (if) the
physical condition of the Property or defects in the Property or (iii) obligations under any Service
Contract that Buyer does not accept.
(D) The respective indemnity obligations of Seller and Buyer under this Section 17 will
survive Close of Escrow and recording of the Deeds, but only for a period of one year, and any action
on any such indemnity obligation will be barred unless the related claim against Seller or Buyer, as
applicable, is asserted in writing against the other party within such one-year period.
18. Consequences of Termination.
(A) If Buyer terminates its obligation to complete the Purchase under circumstances
permitted by this Agreement, neither Buyer nor Seller will have any further obligation under this
Agreement, except obligations under Sections 4, 6(B), 6(C), 14 and 19(C). Nothing in this Section
18 is intended to limit the provisions of this Agreement dealing with the disposition of funds or
documents held in escrow following termination of the obligations of Buyer or Seller. In addition,
nothing in this Section 18 limits the liability of a party for its breach of this Agreement, including a
breach that results in the termination of the obligations to complete the Purchase. Buyer's election to
terminate its obligation to complete the Purchase under Sections 11 or 12 will not constitute an
election of remedies.
(B) If Buyer or Seller terminates its obligations to complete the Purchase, except as a result of
Seller's default, Buyer will provide to Seller all studies, tests, reports, and surveys relating to the
Property prepared for Buyer by third -party consultants, other than Buyer's attorneys.
Real Estate Purchase Agreement 15
19. Miscellaneous.
(A) Subject to the limitations in Section 9(C) and 17(D), all covenants, undertakings and
obligations under this Agreement and all representations and warranties contained in this Agreement
will survive the Close of Escrow and will not be merged into the Deeds or other documents delivered
pursuant to this Agreement.
(B) When the context so requires in this Agreement, words of one gender include one or
more other genders, singular words include the plural, and plural words include the singular. Use of
the words "include" and "including" are intended as an introduction to illustrative matters and not as
a limitation. References in this Agreement to "Sections" are to the numbered subdivisions of this
Agreement, unless another document is specifically referenced. The word "party" when used in this
Agreement means either Buyer or Seller unless another meaning is required by the context. The word
person includes individuals, entities, and governmental authorities. The word "governmental
authority" is intended to be construed broadly and includes governmental agencies, instrumentalities,
bodies, boards, departments and officers and individuals acting in any official capacity. The word
"laws" is intended to be construed broadly and includes all codes, statutes, case law, rules,
regulations, pronouncements and requirements of any court or governmental authority. A statement
in this Agreement that a party will take or refrain from taking an action constitutes an undertaking
and agreement by that party to take or refrain from taking, as appropriate, the specified action.
(C) If litigation is commenced by Buyer or Seller in connection with this Agreement or the
Purchase, the party prevailing in the litigation will be entitled to collect from the other party the
expenses (including fees and disbursements of attorneys and other professionals and
paraprofessionals and court costs) incurred in .connection with the litigation. Determination of
whether'a party has prevailed in' litigation will be judged -against the. final settlement offers'before
trial.
(D) Any notice or other communication to any party given under this Agreement will be
effective only if in writing delivered to whichever of the following addresses is applicable:
To Seller:
DUST, LLC
Attention: D. Michael Dunne, Managing Partner
2102 E Main, Suite 104
Puyallup, Washington 98372
To Buyer:
City of Yelm
Attention: Michael Grayum, City Administrator
105 Yelm Ave W
Yelm, Washington 98597
Telephone: 360-458-4805
Real Estate Purchase Agreement 16
Facsimile: 360-458-4348
Email: michaelg@ci.yelm.wa.us
With copy to:
Brent Dille
Dille Law, PLLC
2010 Caton Way SW, Suite 101
Olympia, Washington 98502
Telephone: 360-350-020
Facsimile: 844-210-4503
Email: brent@dillelaw.com
Any notice or other communication will be deemed to have been received upon deposit in any
United States Postal Service post office box, postage prepaid, addressed as set forth above. Any
notice or other communication delivered by other means will be deemed received only upon delivery
to the address of the intended recipient set forth above or rejection ofdeHvery at such address. Notice
may be given by electroniemail (email) or facsimile transmission. The addresses and addressees to
which notice is to be given may be changed by written notice given in the manner specified in this
section 19 (D) and actually received by the addressee,
(E) This Agreement will be binding upon and will inure to the benefit of Buyer and Seller
and their respective successors and. permitted assigns. Any person named as fihe beneficiary of any
indemnity in this Agreement is intended to be a third -party beneficiary under this Agreement to the
extent of his rights under such indemnity. Neither the Broker nor the Title Company is intended to
be a third -party benefrdiary of this Agreement.
(F) The Section headings contained in this Agreement are for convenience of reference only
and are not intended to delineate or limit the meaning of any provision of this Agreement or be
considered in construing or interpreting the provisions of this Agreement.
(G) This Agreement may be executed in any number of counterparts, each of which will be
deemed an original and all of which, taken together, will constitute one instrument.
(H) This Agreement embodies the entire agreement and understanding between Buyer and
Seller with respect to its subject matter and supersedes all prior agreements and understandings,
written and oral, between Buyer and Seller related to that subject matter. This Agreement and the
obligations of the parties under this Agreement may be amended, waived and discharged only by an
instrument in writing executed by the party against which enforcement of the amendment, waiver or
discharge is sought. Joinder of the Title Company will not be necessary to make any amendment,
waiver or discharge effective.
Real Estate Purchase Agreement 17
(I) The determination that any provision of this Agreement is invalid or unenforceable will
not affect the validity or enforceability of the remaining provisions or of that provision under other
circumstances. Any invalid or unenforceable provision will be enforced to the maximum extent
permitted bylaw.
(T) The term "date of this Agreement" means the date on which the Title Company
acknowledges receipt of a counterpart of this Agreement executed by both Seller and Buyer. This
Agreement will become effective between Buyer and Seller when it has been executed by Buyer and
Seller, regardless of when the Title Company acknowledgesxeceipt o -f the executed Agreement.
(K) This Agreement will be governed by the.laws of the State of Washington, without giving
effect to principles ofconflicts of law. Any action between the parties relating to this Agreement or
the transactions contemplated by this Agreement will be brought in Thurston County, Washington.
SELLER:
DUST, LLC
By: D. Miche1 Dunne
Its: Managing Partner
City of Yelm Approved as to form
y 2. Zoig
/.W. Foster, Mayor Yelm City Attorney
Real Estate Purchase Agreement 18
I+JXHIBIT A
Leual Description
Real Estate Purchase Agreement 19
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4524966 Page 2 of 6 09/27/2016 03:24 PM Thurston County WA
STATUTORY WARRANTY DEED
(continued)
Dated: September 19,2018
YCO Network In8 _are D, ume
AUthodzed Representallve
AI�-
Stale of It1t�4, RM cizeel rQ
tie t3hh
County of
I cergty that 1 know or have satisfactory evidence that Karen D,Turner is the person who appeared
before me, and said person acknowledged that tWahe akned this InSIMMent, on oath statsd that
MAN was gulhodzed to execute the lnshument and acknowledged It as Authorized Representailve of
PCOM Networks, Inc to he the free and voluntary act of such party for the uses and purposes
mentioned In the InStruma01,
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4524966 Page 3 of 6 09/27/2016 03:24 PM Thurston County WA
EXHIBIT "A"
Legal Description
Parcel A:
Lot 8 In Block a of McKenzWs FirstAddltion to the Town of Yelm, as recorded In Volume 8 of Plats,
Page 26;
In Thurston County, Washington
Parcel 8;
Parcel 9 a(Boundary Lina Adjustment No. BLQ 16-D304 YL, as MUM August 3D, 2016 under
Recording No. 4619937,
In Thurston County, Washington
Parcel C:
Lot 14 and the Easterly half of Lot 16 In Block 8 of McKenzte's Brit Addition to the Town of Yelm, as
recorded In Volume 8 of Plats, page 26;
In Thurston County, Washington
Parcel D:
Lot 1tt and the Northwesterty half of Lot 16 in Block a of McKenzie's First Addition to the Town of Yalm, I
as recorded in Volume 8 of Plats, page 26; r
In Thuraton County, Washington
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4524966 Page 5 of 6 09/27/2016 03:24 PM Thurston County WA
EXHIBIT "B'•
Exceptions
(continued)
tsiocommunlcallons Una and conduits, togethsr With the right of ingress
across the Property as reasonablyrequWq foren►oyment and egress over andofeasemen! Nghts herein granted
Recording Rates: August 26, 2016 and August 30, 2018
Recording Nos.:4UI9308 and 431903a
Affects: Partlans orPatcets A and a
11. Covenonts, condiflons, restdsflons, rocltals, roselvaaons, easements, easement provisions,
dedications, building salback tines, notes, statements, and aff]er n]ahers, If any, as sot forth on
Boundary Line Adjustment No, OLA 18.0304 YL:
Recording Nos: 4919936 and 4819937
Affects: Parcel a
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V'MOOOW9.d" UP&IO4. 96,29.16 PnW 9 WA'cT-FN92.02159.692472-06708z3.00
4524966 Page 6 of 6 09/27/2016 03;24 PM Thurston County WA
EXHIBIT,v,
Deed Restriction
No portion of and ne addillon to any structure of any kind whatsoever mat Woods fourteen feet (14)
In height from ground 16V81 shall he arectsd, bunt or constructed, completely or paNally, on Lola 9,10,
11, or (he Southeastefly 28 feet of Lot 12, or any combinoUon thereof, In Ellack 8 of McKenzla's First
Addition to the Town of Yelm, es recorded In Volume 8 of Plats, page 28, In Thurston County,
W88hington, In addition, all landacaping and uegetallon of any sort whatsoever on said Loft. 0, 10, 11
and the 3oulheasteriy 28 foot of Lot 12 shall be kept at all times at leas than fourteen feel (14') above
ground level, It Is a materia( considerallon o(916 sate of QUA. property by PCOM Networks, Inc. that the
unob3tiucted AnsroF-3lghtbe maintained stall times for the struc[uras on Lola 12 and 13 in alook 8 of
McKenzie's First Addition to the Town of Yolm as recorded M Volume 8 of plats
County Washington , pogo 28, In -Thurston
hurs[on
Stowm Bdc*0pd4I L 06.PG 2 to
P1040 WA-GT-FNSU-021SU22472-0070627-00
File #18-032 Page 32
FACTUAL DATA/SUBJECT INFORMATION
PLAT MAP
GPA Valuation
File #18-032
FACTUAL DATA/SUBJECT INFORMATION
AERIAL PHOTO
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Page 33
File #18-032
FACTUAL DATA/SUBJECT INFORMATION
BOUNDARY LINE ADJUSTMENT SURVEY
Page 34
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