073-20 - Kitsap County - ContractContract No. 073-20
PURCHASE AND SALE AGREEMENT
SELLER: Kitsap County, a Political Subdivision of the State of Washington
(under the jurisdiction of the Roads Division)
PURCHASER: City of Port Orchard, a Washington Municipal Corporation
ABBREVIATED Portions of the SE1/4 of Section 35, Township 24 North, Range 1
LEGAL: East and NE1/4 of Section 2 and SW1/4 of Section 1, both in
Township 23 North, Range 1 East and W.M., Kitsap County,
Washington
PARCEL NOS: 022301-1-014-2008; 022301-1-059-2004; 012301-3-035-2000;
4625-000-003-0103; 4625-000-004-0003; and 022301-1-006-2008
This Purchase and Sale Agreement, dated for reference purposes as Cd-JgeeD
Le , 2020 ("Agreement"), is entered into by and between Kitsap
County, a Political Subdivision of the State of Washington ("Seller") and the City of Port
Orchard, a Washington Municipal Corporation ("Purchaser"). Seller and Purchaser may
be referred to herein individually as a "Party" or collectively as the "Parties". The
effective date of this Agreement shall be the date upon which the last of Seller and
Purchaser have both signed this Agreement ("Effective Date").
RECITALS
A. Seller owns certain real properties located in the City of Port Orchard,
Kitsap County, Washington, more particularly described in Exhibit A, attached hereto
and incorporated herein by this reference (collectively, "Properties"); provided, the
Parties authorize Escrow Agent to substitute a corrected legal description in Exhibit A,
which substitution shall not affect the Effective Date.
B. The Properties are located within the municipal boundaries of the City of
Port Orchard along Bethel Road SE, Port Orchard WA 98366 and include unimproved
parcels of real property, subject to Permitted Exceptions (as defined below).
C. The Properties includes all improvements, buildings, and fixtures situated
thereon of the Seller, easements, licenses, minerals, oil, gas, permits, utilities, rights of
ingress and egress, development rights, water and water rights and other rights,
privileges, and appurtenances pertaining to the real properties to the extent that Seller
has any interest therein. The Properties do not include personal property, if any, affixed
and used in the operation of the land, which shall be removed by Seller.
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D. Purchaser desires to purchase from Seller, and Seller hereby desires to
sell to Purchaser, the Properties on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW THEREFORE, incorporating the foregoing, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
Section 1. Purchase and Sale. Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser agrees to buy the Properties and Seller agrees to sell the
Properties to Purchaser for a purchase price of One Million Four Hundred Fifteen
Thousand Dollars and No/100 ($1,415,000.00) in cash at Closing.
Section 2. Earnest Money Deposit. The Parties agree to waive the deposit of earnest
money.
Section 3. Closing, Escrow Agent. Closing shall occur on or before November 30,
2020 ("Closinq Date"). Closing means the date on which all documents required to
convey marketable title to the Properties and to consummate the transactions
contemplated herein have been executed and delivered to Escrow Agent, a Statutory
Warranty Deed subject only to Permitted Exceptions to convey the Properties to
Purchaser has been recorded in the real property records of Kitsap County, and the
sale proceeds are available for disbursal to Seller ("Closing"). Within fifteen (15)
business days of the Effective Date of this Agreement, Seller shall open escrow by
depositing a fully executed copy of the Agreement with Escrow Agent. The Escrow
Agent and title company for Closing shall be Pacific Northwest Title Company ("Escrow
Agent"), located at 2021 NW Myhre Road, Suite 300, Silverdale WA 98383. In the
event that Closing does not occur on or before the Closing Date, this Agreement shall
terminate and Seller and Purchaser shall thereafter have no further obligation to the
other hereunder. The Parties agree to execute and deliver all customary escrow
documentation typically required by escrow agents, including this Agreement, with
Escrow Agent at Closing. Purchaser shall pay all escrow fees, title fees, and recording
fees. The Escrow Agent shall ensure the following:
3.1 That all utilities such as electricity, water, sewer, gas, oil, and real property
taxes shall be prorated to the date of Closing.
3.2 That any special assessments, L.I.D. assessments and R.I.D. assessments
which are levied against the Properties at the time of Closing shall be
prorated to the date of Closing and transferred into the name of the Purchaser
upon Closing.
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Section 4. Time for Acceptance. Purchaser has until September 25, 2020 to accept
this Agreement. Purchaser must sign where indicated before a notary public and return
the signed Agreement to Seller by 4:30 p.m. on September 25, 2020.
Section 5. Title/Title Insurance.
5.1 Title Report. Within five (5) business days after the Effective Date, the Parties
shall cause Escrow Agent to deliver to Purchaser a preliminary title report
regarding the Properties, including legible copies of all instruments described
in the report ("Title Report"). Purchaser shall review the Title Report and
notify Seller within thirty (30) days after receipt of the Title Report ("Title
Review Period") which title matters are approved by Purchaser. Only non -
delinquent general taxes, non -delinquent general assessments and those title
matters that Purchaser expressly approves in writing shall be permitted
exceptions ("Permitted Exceptions"). In no event shall any monetary
encumbrance or lien be a Permitted Exception; Seller must remove all of the
same by Closing. Any exception in the Title Report not expressly approved by
Purchaser in writing during the Title Review Period shall be deemed
disapproved. Seller shall have 10 days after receiving Purchaser's title
disapproval notice or deemed disapproval to notify Purchaser if Seller will
cure or remove any matters disapproved or deemed disapproved by
Purchaser. Failure of Seller to timely respond shall be deemed an election not
to cure. If Seller elects or is deemed to have elected not to cure any objection
of Purchaser, Purchaser may elect to terminate this Agreement any time prior
to Closing, in which case Seller shall pay all cancellation fees due to Escrow
Agent, if any, and the Parties shall have no further rights or obligations under
this Agreement. Seller shall not allow any encumbrance or exception on the
Properties after Purchaser's delivery of its title notice, without Purchaser's
express written consent.
5.2 Title Insurance. At Closing, Seller shall cause Escrow Agent to issue a
standard owner's coverage ALTA Title Insurance Policy on the Properties
("Title Policy") which shall: (i) be in the amount of the Purchase Price; (ii)
insure fee simple, good and indefeasible title to such Properties and right of
access thereto in Purchaser; (iii) include coverage against unrecorded liens;
(iv) contain no exceptions other than the Permitted Exceptions; and (v)
include any reasonable title endorsements requested by Purchaser.
Purchaser shall pay for all costs of the standard coverage Title Policy and
Seller shall provide any surveys of the Properties in its possession to
Purchaser. Purchaser shall pay any additional costs associated with obtaining
extended coverage, including the costs of an ALTA survey, and any
endorsements that may be requested by Purchaser. Seller shall provide the
Escrow Agent with a customary indemnity or owner's affidavit required by the
Escrow Agent to remove from the Title Policy the standard general exceptions
for mechanic's liens and parties in possession, Seller shall have no obligation
to indemnify Escrow Agent against any matters created by, through or under
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Purchaser.
Section 6. Inspection and Evaluation of the Properties. Purchaser acknowledges
and accepts the Properties "As -Is" and "With All Faults" and releases the Seller of
any future claims regarding the Properties at Closing, except as otherwise expressly
provided for herein. Within 20 days of the Effective Date, Seller shall provide or make
available to Purchaser for inspection and copying to the extent available or within
Seller's possession or control, copies of all contracts, appraisals, environmental surveys
or audits of the Properties or the improvements, tenant leases, certificates of
occupancy, soils reports, real property records, including copies of property tax
assessments, LID proposals, agreements, leasing proposals and any other documents
and information in the possession or control of Seller and pertaining to the Properties
and all other items which Purchaser deems reasonably necessary to conduct its review
of the Properties. Notwithstanding the foregoing, Seller shall have no obligation to make
available any correspondence protected by attorney -client privilege. Purchaser waives
receipt of a seller disclosure statement pursuant to RCW 64.06.010(7), except with
respect to any positive answers to the Environmental section.
6.1 Purchaser shall have until the expiration of this Agreement in which to
conduct its review of the Properties, and Purchaser's obligation to
consummate the transactions contemplated herein shall be expressly
conditioned upon Purchaser satisfaction, in its sole discretion, with such
review. Said review shall include periodic physical and engineering
inspections of the Properties. If requested, Seller agrees to cooperate with
and assist Purchaser in the physical inspections of the Properties and such
documents, books, records and information, provided that such inspection
shall be conducted during normal business hours or at such other time as is
reasonable and necessary to conduct the inspection. Purchaser shall repair
any damage to the Properties caused by Purchaser, its employees and/or
assigns during such inspections.
6.2 Seller agrees to allow the Purchaser and/or assigns to enter upon the
Properties for the purpose of conducting due diligence investigations,
including taking soil and water samples, installing monitoring wells, borings,
geotechnical examinations, environmental examinations, and all other actions
necessary or appropriate to complete its due diligence review.
6.3 Upon Closing, Purchaser specifically acknowledges and agrees that (1) Seller
does not make any representations or warranties of any kind whatsoever,
ether express or implied, with respect to the Properties except as specifically
state herein and (2) the Properties is conveyed to Purchaser in an "As -Is"
and "With All Faults" condition as of the date of Closing, except as
specifically stated herein, including, without limitations, the condition or
stability of the soils or ground waters, the presence or absence of hazardous
materials on or under the Properties, suitability for any construction or
development, zoning and similar matters.
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Section 7. Closing Costs. Purchaser shall pay the following costs and expenses in
connection with this transaction:
a. Purchaser's attorney fees;
b. Title insurance premium or abstract fee and sales tax thereon, if any;
c. All Escrow fees with the exception of prorated real property taxes; Kitsap County
is real estate tax exempt per WAC 458-61A-205(2); and
d. Fees for recording the Statutory Warranty Deed.
Section 8. Commissions. Purchaser and Seller are not represented by a broker in this
transaction.
Section 9. Possession. Purchaser shall be entitled to possession of the Properties
upon the date of Closing, subject to such matters approved in writing by the Purchaser.
The Seller will remove private improvements, if any, from the Properties and disconnect
utilities no later than December 31, 2020.
Section 10. Governing Law: Venue. This Agreement and the rights of the Parties
hereto shall be governed by and construed in accordance with the laws of the State of
Washington and the Parties agree that in any such action venue shall lie exclusively in
Kitsap County, Washington.
Section 11. Time is of the Essence. Time is of the essence in the performance of any
obligation pursuant to this Agreement. Failure of either Party to insist upon the strict
performance of the other Party's obligation hereunder shall not constitute a waiver of
strict performance thereafter of the other Party's entire obligation hereunder.
Section 12. Amend ment/Waiver. No modification, termination or amendment of this
Agreement may be made except by written agreement or as otherwise may be provided
in this Agreement. No failure by Seller to insist upon the strict performance of the
Purchaser's obligations hereunder shall constitute a waiver of strict performance
thereafter of all of the Purchaser's obligations hereunder. All the terms, provisions, and
conditions of this Agreement shall inure to the benefit of and be enforceable by Seller
and Purchaser and their respective legal heirs, legal representatives, successors and
assigns.
Section 13. Notices. Any notices required or permitted to be given shall be in writing
and delivered either in person or by certified mail, return receipt requested, postage
prepaid, addressed as follows or to such other address as may be designated by either
party:
SELLER: Kitsap County Public Works
Attn: Molly Foster
614 Division Street, MS-26
Port orchard WA 98366-4699
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PURCHASER: City of Port Orchard
Attn: Robert Putaansuu
216 Prospect Street
Port Orchard WA 98366
Any notice given pursuant to this Agreement shall be deemed effective the day it is
emailed or personally delivered or five (5) business days after the date it is deposited in
the United States mails.
Section 14. Entire Agreement. All understandings and agreements previously existing
between Parties, if any, are merged into this Agreement, which alone fully and
completely expresses their agreement, and the same is entered into after full
investigation, neither Party relying upon any statement or representation made by the
other not embodied herein. This Agreement may not be changed or terminated orally.
Section 15. Merger of Prior Agreements. This Agreement and the exhibits hereto
constitute the entire agreement between the Parties with respect to the purchase and
sale of the Properties and supersedes all prior and contemporaneous agreements and
understandings between the Parties hereto relating to the subject matter hereof.
Section 16. Indemnity. Purchaser shall indemnify, and hold Seller harmless from and
against any costs, expenses and liabilities, including without limitation reasonable
attorneys' fees, which Seller may suffer or incur resulting from any action or inaction of
Purchaser, its agents or employees occurring on or after Closing.
Section 17. Assignment. This Agreement and all terms, provisions and covenants
contained herein shall apply to, be binding upon and inure to the benefit of the Parties
hereto, and their respective successors, assigns and heirs. No rights or interests under
this Agreement shall be assigned without the written consent of both Parties. All terms
of this Agreement shall survive after closing, and unless agreed to in this Agreement,
shall not merge with the granting of the deed.
Section 18. Default: Remedies: Specific Performance. In the event of material
breach or default in or of this Agreement or any of the representation, warranties, terms,
covenants, conditions or provisions hereof by Purchaser, Seller shall have, in addition to
a claim for damages from such breach or default and without prejudices to any other
right or remedy available under this Agreement or at law or in equity, the right to (a)
demand and have specific performance of this Agreement; (b) demand injunctive relief
to enforce any provision of this Agreement; or (c) terminate this Agreement upon written
notice without any additional liability to Seller and Purchaser shall be entitled to a full
refund of any payments outlined herein. In the event of a material breach or default in or
of this Agreement or any representations, warranties, terms, covenants, conditions or
provisions hereof by Seller, Purchaser's only remedy shall to terminate this Agreement.
Section 19. Neutral Authorship. Each of the provisions of this Agreement has been
reviewed and negotiated and represents the combined work products of both Parties
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hereto. No presumption or other rules of construction which would interpret the
provisions of this Agreement in favor of or against the Parties preparing the same shall
be applicable in connection with the construction or interpretation of any of the
provisions of this Agreement.
Section 20. Severability. In case any one or more of the provisions contained in the
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
Section 21. Remedies Cumulative. Except as otherwise expressly provided herein,
the rights and remedies given herein to Purchaser and Seller shall be deemed
cumulative, and the exercise of one or more of such remedies shall not operate to bar
the exercise of any other rights reserved to Purchaser or Seller under the provisions of
this Agreement.
Section 22. Purchaser's Title Information. Unless otherwise notified by Purchaser in
writing prior to the date of closing, Seller shall convey the Properties to Purchaser as
follows:
City of Port Orchard, a Municipal Corporation
Section 23. Representations and Warranties. Seller makes the following
representations and warranties to Purchaser, which shall also be true at Closing:
23.1 Seller has full right, power, and authority to sell the Properties to
Purchaser and to carry out its obligations hereunder. All required action necessary to
authorize Seller to enter into this Agreement and to carry out its obligations hereunder
have been or will be taken prior to Closing, and the undersigned is authorized by Seller
to execute and deliver this Agreement.
23.2 The Properties are not subject to any preemptive rights, including, without
limitation, options to purchase, rights of first refusal, rights of first offer, or leases, except
as disclosed to Purchaser within 20 days of the Effective Date.
23.3 There are no parties in possession of any portion of the Properties, except
those disclosed to Purchaser within 20 days of the Effective Date.
23.4 Seller has received no written notice from any other governmental
authority regarding any violation of any statute, regulation, ordinance, administrative
order or judicial order.
23.5 There are no claims, litigation, proceedings, or investigations pending
related to the Properties, and no fact or condition which, given the passage of time, is
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likely to result in a potential claim, dispute or litigation relating to the Properties, and
upon obtaining knowledge of the institution of any claim, litigation, or proceeding relating
to or involving the Properties or any portion thereof in any way, Seller will notify
Purchaser of the pendency of such claim, litigation, or proceeding.
23.6 Seller has not used, generated, processed, stored, disposed of, released
or discharged any Hazardous Substance on, under, or about the Properties or
transported Hazardous Substances to or from the Properties, nor has any party ever
alleged that any such activities have occurred; (b) there are no underground storage
tanks at, on, or under the Properties and any prior underground storage tanks that
previously existed at the Properties were removed in accordance with applicable laws;
and (c) no use by Seller or any other person or entity has occurred which violates or has
been alleged by any party to violate any applicable Environmental Law. As used herein,
"Hazardous Substance" means all hazardous, dangerous or toxic substances,
materials, pollutants, particles or contaminants (including asbestos, PCBs, radon and
urea formaldehyde), and any similar substances that are regulated by any local, state,
or federal law, rule, or regulation pertaining to environmental regulation, contamination,
clean-up or disclosure or to the health and safety of persons or protection of the
environment, including without limitation, the Comprehensive Environmental Response
Compensation and Liability Act, the Superfund Amendments and Reauthorization Act,
the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and
the Washington Model Toxics Control Act, all as amended (collectively, "Environmental
Laws").
23.7 Seller's representations and warranties set forth herein are material to this
Agreement and shall be true as of the Effective Date and true and deemed re -made at
Closing. All of Seller's representations and warranties shall survive Closing and shall
not merge into the Statutory Warranty Deed. If any of Seller's representations and
warranties become untrue before Closing, Seller shall take all necessary actions to
make such representations and warranties true and correct before Closing. If any
Seller's representations and warranties are not corrected before the Closing Date,
Purchaser shall be entitled to terminate this Agreement. Additionally, if Seller breaches
any of Seller's representations or warranties, Seller shall indemnify, defend and hold
Purchaser, its successors and assigns, harmless from and against all claims, costs,
expenses, fines, penalties and liabilities of any kind or nature whatsoever, whether
foreseeable or not, and all other damages and losses, including without limitation
reasonable attorneys' fees, directly or indirectly and in whole or in part, arising out of or
attributable to such breach, including clean-up, removal, monitoring, and remediation
costs for breach of any Seller representation or warranty concerning environmental
matters. The foregoing indemnification obligation shall survive Closing and not merge
with the Statutory Warranty Deed.
Section 24. Closing Conditions. Purchaser's obligation to close this transaction shall
be expressly conditioned upon the following (collectively, "Closing Conditions")- (i)
Seller has performed all of its obligations under this Agreement and is not in default; (ii)
Escrow Agent has committed to issuing the Title Policy, subject only to the Permitted
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Exceptions; (iii) no material change has occurred to the physical condition and legal
status of the Properties since the Effective Date: (iv) no material change has occurred
with respect to the environmental condition of the Properties or the property in the
immediate vicinity of the Properties since Purchaser's inspections; (v) at Closing, there
are no parties in possession of any part of the Properties, except such parties as are
accepted by Purchaser; (vi) Purchaser has received the approval of the City of Port
Orchard City Council to this close this Agreement; and (vii) Seller's representations and
warranties are true and correct.
IN WITNESS WHEREOF, the Parties hereto have hereunto subscribed their names.
Kitsap County
Representative
Date: -Z_•
City of Port Orchard
Representative
Title: Mayor
Date: Septernberilt 2020
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Purchase & Sale Agreement
Bethel Road SE Corridor Properties
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STATE OF WASHINGTON )
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COUNTY OF KITSAP COUNTY )
On this -� ,r date of nQ7tnV , 2020, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn,
personally appeared M b j �'aS-1!cR to me known to be the Real Estate
Services Manager representing Kitsap County that executed the foregoing instruments,
and acknowledged the said instrument to be the free and voluntary act and deed of said
County, for the uses and purposes therein mentioned, and on oath, stated that she is
authorized by the Board of County Commissioners to execute the said instrument.
Witn'R%, R kogn d and official seal hereto affixed the day and year first above
written. ����PNNA s c�Itiii
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Name:
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STATE OF WASHINGTON )
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COUNTY OF KITSAP COUNTY )
On this ? date of �� j ; �Ij� 2020, before me, the undersigned, a
Notary Public in and fo the St to of Washington, duly commissioned and sworn,
personally appeared WPO A �('r 2L)f, to me known to be the 1 I, )t .
representing the City of Port Orchard that executed the foregoing
instruments, and acknowledged the said instrument to be the free and voluntary act and
deed of said City, for the use and pur therein me coned, and on oath, stated that
he/she is authorized by the L 41/ /> F 'Kr f ) jQ Wexecute the said instrument.
Witness my hand and official seal hereto affixed the day and year first above
written.
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Notary Public in and for the State of Washington
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Residing at:
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Bethel Road SE Corridor Properties
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Exhibit A
(Bethel Road Corridor Properties)
Legal Descriptions
Tax Parcel No. 022301-1-014-2008
Portion of the Northeast Quarter of the Northeast Quarter, Section 2, Township 23
North, Range 1 East, W.M., described as follows: beginning at a point on the East line
of said Section 2, 1050 feet due South of the Northeast corner of said Section 2; thence
South along said Section line 125 feet to an existing established fence which point is
1175 feet South of the Northeast corner of said Section 2; thence South 88°28' West
along said fence 225 feet; thence North parallel with said Section line 125 feet; thence
North 88028' East parallel with said existing fence line 225 feet to the point of beginning;
EXCEPT portion in State Highway;
Situate in the County of Kitsap, Washington.
Tax Parcel No. 022301-1-059-2004
Lot B of Short Plat No. 4924, as recorded under Auditor's File No. 9001170117 being a
portion of the Northeast Quarter of the Northeast Quarter of Section 2, Township 23
North, Range 1 East, W.M., Kitsap County, Washington; EXCEPT that portion conveyed
for Bethel Road SE under Auditor's File No. 8903140065 and 9610280038;
Situate in the County of Kitsap, Washington.
Tax Parcel No. 012301-3-035-2000
Starting at a point which is South 89012' East 30 feet from the West Quarter corner of
Section 1, Township 23 North, Range 1 East, W.M., Kitsap County, Washington; thence
South 89°12' East 230 feet; thence South 00036' West 139.76 feet; thence North 89012'
West 230 feet; thence North 00°36' East 139.76 feet to the point of beginning; less
portion for SE Salmonberry Road and Bethel Road SE;
Situate in the County of Kitsap, Washington.
Tax Parcel Nos. 4625-000-003-0103 & 4625-000-004-0003
The South half of the South half of Lot 3 of Port Orchard Villa Tracts, as per plat
recorded in Volume 4 of Plats, Page 100, records of Kitsap County Auditor; EXCEPT
the East 30 feet;
AND
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Lot 4 of Port Orchard Villa Tracts, as per plat recorded in Volume 4 of Plats, Page 100,
records of Kitsap County Auditor; EXCEPT the South 146.35 feet of the West half
thereof; and EXCEPT the East 30 feet;
Situate in the County of Kitsap, Washington.
Tax Parcel No. 022301-1-006-2008
The East 6 acres of the following: the South half of the North half of the Southeast
Quarter of the Northeast Quarter of Section 2, Township 23 North, Range 1 East, W.M.,
Kitsap County, Washington; EXCEPT Bethel Road SE as conveyed to the State of
Washington for State Highway No. 14 by deed recorded under Auditor's File No.
144195;
UKIW,
The North 50 feet of the following described tract: the North 220 feet of the East 396
feet of the North half of the South half of the Southeast Quarter of the Northeast Quarter
of Section 2, Township 23 North, Range 1 East, W.M., Kitsap County, Washington;
EXCEPT the East 30 feet for Bethel Road SE as conveyed to the State of Washington
for State Highway No. 14 by deed recorded under Auditor's File No. 144195;
Situate in the County of Kitsap, Washington.
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