HomeMy WebLinkAbout2017-184 YMCA Contract for Sale
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After recording, return to:
Ashland Family YMCA
540 YMCA Way i
Ashland, OR 97520
Until a change is requested,
All Tax Statements will be sent to:
Ashland Family YMCA
540 YMCA Way 1
Ashland, OR 97520
CONTRACT OF SALE
This Contract of Sale (this "Contract") is made as of August 24, 2017
between City of Ashland, an Oregon Municipal Corporation ("Seller") whose
address is 20 East Main Sheet and Young Men's Christian Association of
Ashland (dba Ashland Family YMCA), a non-profit corporation under the
State of Oregon ("Purchaser") whose address is 540 YMCA Way, Ashland,
Oregon, 97520.
Seller owns the real property located in Jackson County, Oregon, and
described in attached Exhibit A (the "Real Property") and the personal
property described in attached Exhibit B (the "Personal Properly") (together,
the "Property"). Seller has determined that the public interest will be furthered
by selling the property and therefore agrees to sell the Property to Purchaser
and Purchaser agrees to buy the Property fiom Seller for the price and on the
terms and conditions set forth below:
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Article 1
PURCHASE PRICE AND PAYMENT
1.1 Total Purchase Price. Purchaser promises to pay Seller as the
total purchase price for the Property the sum of Four Hundred and Eighty
Thousand and xx/100 dollars ($480,000.00 US), subject to the restrictive
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covenant as stated in 1.2.2 below, all of which is the true and actual
consideration for the conveyance of the Real and Personal Property described 1
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herein.
1.2 Payment of Total Purchase Price. The total purchase price 1
will be paid as follows:
1.2.1 Payment. On or before the Closing Date, as defined in section
3. 1, Purchaser will pay the sum of Four Hundred and Eighty Thousand and
xx/100 dollars ($480,000.00 US) in immediately available funds to be applied
to the purchase price at closing.
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1.2.2 Restrictive Covenant. Purchaser will pay Seller Two
Hundred and Seventy Thousand and xx/100 dollars ($270,000.00 US) if
Purchaser fails to use substantially all of the site for YMCA programs,
including but not limited to youth sports or recreation until ten 10") years
following the date of closing, or August 31, 2027. fi
Article 2
TAXES AND LIENS
2.1 Obligation to Pay. If any tax is levied, all ad valorem real and
personal property taxes and all governmental or other assessments levied
against the Property for the current tax year will be prorated between Seller
and Purchaser as of the Closing Date. Purchaser must pay when due all taxes z
and assessments that are levied against the Property after the Closing Date.
Article 3
CLOSING
3.1 Closing Date. This transaction will be closed by August 31,
2017 or as soon thereafter as practicable at First American Title Company
Title Company (the "Title Company") in Ashland, Oregon. As used in this i
Contract, the Closing Date means the date on which the deed from Seller to
Purchaser is recorded.
3.2 Preliminary Title Report and Title Insurance Policy. Not
less than 5 days prior to the Closing Date Seller will furnish to Purchaser a
preliminary title report showing all exceptions to the title to the Property and
the willingness of the Title Company to issue a title insurance policy to
Purchaser in the amount of the purchase price. Purchaser will notify. Seller,
in writing, within 5 days after receipt of the title report if any of the exceptions
are not acceptable to Purchaser. Those exceptions not objected to by
Purchaser shall be deemed "Permitted Exceptions." If Purchaser objects to
any exceptions in the title report Seller will provide to Purchaser prior to
closing written assurance, satisfactory to Purchaser, of Seller's willingness
and ability to remove such exceptions from the title by the closing date. If
Seller fails to do so, at the-option of Purchaser this agreement shall terminate
and be of no further effect. Within 5 days after closing Seller will furnish to
Purchaser, at Seller's expense, an owner's title insurance policy insuring that
Purchaser owns title to the Property free of all liens other than the Permitted
Exceptions.
3.3 Warranty Deed. At Closing, Seller shall execute a statutory
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warranty deed conveying the property to Purchaser free of all liens and
encumbrances other than the Permitted Exceptions. 1
3.4 Responsibility of Parties. At closing, Purchaser shall pay the
amount of cash specified in section 1.2.1 above, and within five days after
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Closing Seller shall cause to be delivered to Purchaser an Owner's policy of
title insurance insuring Purchaser's title to be free of all liens and
encumbrances other than the Permitted Exceptions in the amount of the
purchase price.
3.5 Closing Costs. Seller will pay for the title insurance
premium. Other closing costs will be paid equally by the parties.
Article 4
POSSESSION
4.1 Possession. Purchaser will be entitled to possession of the
Property from and after Closing.
Article 5 g
ADDITIONAL CONDITIONS
5.1 Nonexclusive Terminable License for Pedestrian and
Bicycle Access Path. Purchaser will grant to Seller a nonexclusive
terminable license for a pedestrian and bicycle path up to 10 feet in width
across the Property and will ensure that it is not revoked or terminated so long
as Ashland Parks and Recreation Commission ("APRC") or City of Ashland
owns adjacent property, or until a public right of way from Tolman Creek
Road to Clay Street in the City of Ashland is constructed adjacent to the
Property; and
5.2 Nonexclusive Terminable License for use of playground
facilities. Purchaser will grant Seller a nonexclusive terminable license to use
the existing playground equipment in the children' play area for age-
appropriate active play during times not otherwise reasonably scheduled for
use by the YMCA, and Purchaser will ensure that such grant will extend for a
two-year period from the Closing Date provided herein, or until APRC locates
and completes a playground in a park designed to serve the present population
of citizens and visitors who now use the YMCA playground facility,
whichever occurs sooner. This provision shall not prevent Purchaser from
establishing reasonable and lawful rules regulating the use and times of use
for the playground facility, and Purchaser shall have the right to exclude from
said playground area persons who fail to comply with said rules..
5.3 Inspections of Playground And Pedestrian and Bicycle
Path. While either of the nonexclusive terminal licenses in sections 5.1 and
5.2 above remains in effect, Purchaser will give Seller access to the childrens'
playground and Pedestrian and Bicycle Path and Seller will continue making
regular inspections of these improvements to assure Purchaser has regular
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notice of safety compliance and concerns.
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Article 6
INSURANCE
6.1 Liability Insurance. While either license for the pedestrian
and bicycle path or playground use referenced in Article 5 above remains in
effect, Purchaser will maintain commercial general liability insurance with
limits of not less than $2,000,000 per occurrence and $2,000,000 in the
general aggregate for the Property. It is the intent of the parties to this
Contract that insurance held by Seller, if any, with respect to any such insured i
risks will be excess over the insurance required to be obtained by Purchaser
by this Contract. The insurance required above must cover all risks arising
directly or indirectly out of Purchaser's activities on or any condition of the
Property not due to any acts, errors or omissions of Seller. -Purchaser will
deliver to Seller a copy of such policy and certificates of coverage from each
insurer containing a stipulation that coverage will not be canceled without a
minimum of 30 days' written notice to Seller.
Article 7
INDEMNIFICATION
7.1 Parties Indemnification of Each Other. Both Seller and
Purchaser, although in accordance with and as limited by ORS 30.260 to
30.300 (Oregon Tort Claims Act) and the Oregon Constitution Section XI(9)
as applied to the City of Ashland, agree to indemnify, defend and hold
harmless the other and its officers, directors, agents and employees against all
liability, loss and costs arising from actions, suits, claims or demands
attributable in whole or in part to negligent, misconduct, or unlawful acts or
omissions of the wrongful party in performance of this Contract. If the loss or
claim is caused by the joint concurrent negligence or other fault of Purchaser
and Seller, the loss or claim shall be borne by each in proportion to the degree
of negligence or other fault attributable to each. 5
Article 8
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF i
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SELLER
Seller represents and warrants to Purchaser as follows:
8.1 Covenants of Title. Seller is the owner of good and
marketable title to the Property free of all liens and encumbrances and will
defend such title from the lawful claims of persons claiming superior title.
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8.2 Authority. Seller has obtained all requisite authorizations for
the execution and delivery by Seller of this Contract and the performance of
the transactions contemplated by this Contract, and the execution and delivery
of this Contract are made pursuant to such authorizations. Seller is validly z
existing in the state of Oregon, authorized to do business in Oregon.
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8.3 No Brokers. Seller has not employed any broker or finder in
connection with the transactions contemplated by this Contract and has taken
no other action, which action would give rise to a valid claim against
Purchaser for a brokerage commission, finder's fee, or other like payment.
8.4 Litigation..There are no pending claims or litigation or threats
of claims or litigation or other matters of which Seller is aware or by the
exercise of reasonable diligence of which Seller should be aware that could
adversely affect Purchaser's title, use, or enjoyment of the Property.
8.5 Hazardous Substances. To Seller's actual knowledge, no
Hazardous Substance has been disposed of, spilled, leaked, or otherwise
released on, under, or from the Property or has otherwise come to be located
on or under the Property. To Seller's actual knowledge, no Hazardous
Substance has been disposed of, spilled, leaked, or otherwise released on, s
under, or from property adjacent to or in the immediate vicinity of the
Property. To Seller's actual knowledge, no wastes, including without 1
limitation garbage and refuse, have been disposed of on the Property and there
are no underground storage tanks on the Property. The term Hazardous
Substance means any hazardous, toxic, radioactive, or infectious substance,
material, or waste as defined, listed, or regulated under any law pertaining to
the protection of human health or the environment, and includes without
limitation petroleum oil and its fractions. 1
8.6 Compliance with Laws. The Property and every portion of it,
and all activities conducted on the Property, are in compliance with all
applicable federal, state, and local statutes, regulations, and ordinances.
8.7 Permits and Licenses. Seller holds no permits, authorizations,
licenses, or other documents relating to or required for the operation of the
Property. Seller will cooperate with Purchaser in obtaining any such permits,
consents, authorizations, or licenses necessary to the operation of the
Property; however, Seller will not be required to incur any expense relating
thereto unless Purchaser has first advanced funds sufficient to cover all 1
Seller's reasonably anticipated out-of-pocket expenses; furthermore, Seller
will promptly refund to Purchaser any excess funds so advanced, and
Purchaser will reimburse Seller for any shortfall in funds so advanced.
8.8 No Further Contracts. There are no contracts, leases, or
agreements relating to the Property that will be binding on the Property after
the Closing Date. i
8.9 No Wetlands or Till. The Property contains no wetlands or
other water bodies or any fill currently subject to regulation under section 404
of the Clean Water Act (33 USC § 1344) or ORS 196.600 to 196.990 and will
not be in violation of these laws or regulations.
Seller further warrants that as of the Closing Date Seller has not
received any notice, and does not have actual knowledge, of any pending or
threatened claim, action, demand, suit, proceeding, hearing, or governmental
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study or investigation against or involving the Property and related in any way
to the fill or removal of the material in or from any wetland located on the
Property.
8.10 Disclosure. Seller has fully disclosed in writing to Purchaser
all material information in Seller's possession or that Seller owns or controls
that relates to the Property and the title to the Property.
Article 9
DEFAULT
9.1 Events of Default. Time is of the essence of this Contract. A
default will occur under any of the following circumstances:
9.1.1 Purchaser's failure to perform any of its obligations contained
in this Contract within ten 10") days after notice from Seller specifying the
nature of the default or, if the default cannot be cured within thirty ("30")
days, failure within such time to commence and pursue curative action with
reasonable diligence. No notice of default and no opportunity to cure will be
required if, during any 12-consecutive-month period, Seller has already sent a
notice to Purchaser concerning default in the performance of the same
Contract provision.
9.1.2 Purchaser's dissolution, termination of existence, insolvency
on a balance-sheet basis, or business failure; Purchaser's commencement of a
voluntary case under the federal bankruptcy laws or under other federal or
state law relating to insolvency or debtor's relief; the entry of a decree or 1
order for relief against Purchaser in an involuntary case under the federal
bankruptcy laws or under any other applicable federal or state law relating to i
insolvency or debtor's relief; the appointment or the consent by Purchaser to
the appointment of a receiver, trustee, or custodian of Purchaser or of any of
Purchaser's property; Purchaser's assignment for the benefit of creditors or i
Purchaser's failure generally to pay its debts as they become due.
9.2 Remedies on Default. In the event of a default, Seller may
take any one or more of the following steps:
9.2.1 Seller may specifically enforce the terms of this Contract by
suit in equity.
9.3 Remedies Not Exclusive. The remedies provided above are i
nonexclusive and in addition to any other remedies provided by law.
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Article 10
WAIVER
The failure of either party at any time to require performance of any
provision of this Contract will not limit the party's right to enforce the
provision, nor will any waiver of any breach of any provision constitute a
waiver of any succeeding breach of that provision or a waiver of that
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provision itself.
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Article 11
SUCCESSOR INTERESTS
This Contract is binding on and inures to the benefit of the parties, 1
their successors, and assigns. Seller's consent to any transfer will not
constitute consent to other transfers or waiver of this section. Any attempted
assignment in violation of this provision will be void and of no effect with
respect to Seller. Purchaser and any other person at any time obligated for the
performance of the terms of this Contract hereby waive notice of and consent
to any and all extensions and modifications of this Contract or the release of
any person or persons from liability under the Contract granted by Seller. Any
such extensions or modifications or releases will not in any way release,
discharge, or otherwise affect the liability of any person at any time obligated
under this Contract.
Article 12
PRIOR AGREEMENTS
This document is the entire, final, and complete agreement of the
parties pertaining to the sale and purchase of the Property, and supersedes and
replaces all prior or existing written and oral agreements between the parties
or their representatives relating to the Property. f
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Article 13
NOTICE
Any notice under this Contract must be in writing and will be effective
when actually delivered in person or three (3) days after being deposited in the
U.S. mail, registered or certified, postage prepaid and addressed to the party at
the address stated in this Contract or such other address as either party may
designate by written notice to the other.
Article 14
APPLICABLE LAW g
This Contract will be governed by, and construed in accordance with,
the laws of the state of Oregon.
Article 15
COSTS AND ATTORNEY FEES
If either party to this Contract seeks legal counsel because of a default
in perfonnance of any of its terms, the defaulting party must pay, immediately
on demand, the other party's reasonable attorney fees, collection costs, costs
of either a litigation or a foreclosure report (whichever is appropriate), and if a ;
suit or action is filed thereon, any costs of litigation, arbitration, mediation or
appeal and any other fees or expenses incurred by the nondefaulting party. i
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Article 16
NUMBER, GENDER, AND CAPTIONS
As used in this Contract, the singular includes the plural, and the plural
the singular. The masculine and neuter each include the masculine, feminine, E
and neuter, as the context requires. All captions used in this Contract are
intended solely for convenience of reference and in no way limit any of the
provisions of this Contract.
Article 17
SURVIVAL OF COVENANTS
Any covenant the full performance of which is not required before the
closing or final payment of the purchase price and delivery of the deed will
survive the closing and the final payment of the purchase price and the
delivery of the deed and be fully enforceable thereafter in accordance with
their terms.
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Article 18
CONDITION OF PROPERTY
Purchaser accepts the land, buildings, improvements, any personal
property sold under this Contract, and all other aspects of the Property in their
present condition, AS IS, WHERE IS, including latent defects, without any
representations or warranties from Seller or any agent or representative of
Seller, expressed or implied, except for such warranties that may arise by law
under the Deed and except as otherwise specifically set forth in this Contract. 1
Purchaser agrees that Purchaser has ascertained, from sources other than
Seller or any agent or representative of Seller, the condition of the Property,
its suitability for Purchaser's purposes, and the applicable zoning, building,
housing, and other regulatory ordinances and laws affecting the Property. 3
Purchaser accepts the Property with full awareness of these ordinances and
laws as they may affect the present use or any intended future use of the
Property. Except for such warranties that may arise by law under the Deed and
except as otherwise specifically stated in this Contract, Seller has made no
representations with respect to such condition or suitability of the Property or
such laws or ordinances. 1
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Article 19
TERMINATION OF RESTRICTIVE COVENANTS
19.1 At closing the parties shall execute and record a termination of
all restrictive covenants encumbering the Property including but not limited to
those set forth in the deed recorded as, Jackson County Document No. 86-
19956.
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Article 20
STATUTORY DISCLAIMER
The following disclaimer is made pursuant to ORS 93.040(2): i
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT
BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING
STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS ;
AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND
THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST
PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE
PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, ORS 195.301 AND
ORS 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424,
OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009 AND SECTIONS 2 TO 7, CHAPTER 8, OREGON
LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT,
THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING
TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL,
AS DEFINED IN ORS 92.010 OR ORS 215.010, TO VERIFY THE
APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE
EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY
OWNERS, IF ANY, UNDER ORS 195.300, ORS 195.301 AND ORS
195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON
LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON
LAWS 2009 AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS
2010.
The following disclaimer is made pursuant to ORS 93.040(1):
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE
PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, ORS 195.301 AND
ORS 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, i
OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON 1
LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE
PROPERTY DESCRIBED INTHIS INSTRUMENT IN VIOLATION OF
APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH
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THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO
VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A
LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS
92.010 OR ORS 215.010, TO VERIFY THE APPROVED USES OF THE
LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS
AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS
30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING
PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, ORS 195.301 AND
ORS 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, E
OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON C
LAWS 2010. f
Closing Clause:
IN WITNESS WHEREOF, the parties have caused this Contract to be
executed in duplicate as of the day and year first above written.
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Seller: CITY OF ASHLAND Purchaser: YOUNG MEN'S CHRISTIAN
ASSOCIATION OFASHLAND
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JJKarns P 5 G,
Interim City Administrator Vice resident
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Michael Black 5
Director Ashland Parks & Recreation z
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STATE OF OREGON )
County of Jackson ) ss I
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This record was acknowledged before me on 2017, by
John Karns as Interim City Administrator of the City o Ashland. is
OFFICIAL STAMP Notaiy Public for. Oregon
KRISTINE aEGWTRLD y
NOTARY PUBLIC-OREGON ON My commission expires:
COMMISSION NO. 943413
A11' COk1MiSSN EXPIRES OCTOBER 1$ 2019
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AP EVE®AS TO FORM N
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As lend t. City ttomey
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STATE OF OREGON )
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County of Jackson )
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This record was acknowledged before me on , 2017, by
S(~ScrJ S-rRAN S SA fs as Vice President of Young Men's Chri iah Association of
Ashland, an Oregon nonprofit corporation, on bel a of the corporation.
OFFICIAL STAMP
f~~TIME ®ECHTMID
` NOTARY PUBLIC-OREGON
COMMISSION NO. 9-43413 Not r Public for Oregon $
MY COMMISSION EXPIRES OCTOBER 12, 2019 My commission expires: IO ~jxl ~
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STATE OF OREGON ) r
ss.
County of Jackson )
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This record was acknowledged before me on , 2017, by
Michael Black as Director of Ashland Parks & Recreati rs
AOFFICIAL STAMP No ry Public for Oregon 11~~ l9
K TINE BECHTMO
NOTARY PUBLIC-OREGON My commission expires: cv /Z ~ fr
COMMISSION NO. 943413 r
1H COMM ON EXPIRES OCTOBER 1$ 2019
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EXIIIBIT "A"
[Legal Description]
A tract or parcel of land situated in the Southwest quarter of Section 11,
Township 39 South, Range I East of the Willamette Base and Meridian,
Jackson County, Oregon and being more fully described as follows:
Commencing at the section corner common to Section It, 12, 13, 14, said F
Township and Range; thence North 78° 45' 23" West, 3,435.60 feet to a 5/8
inch iron rod situated in the Westerly right of way of Tolman Creek Road, as
said road has been resurveyed and monumented, for the TRUE POINT OF
BEGINNING, thence leaving said right of way, South 89° 57' 36" West,
315.08 feet to a found 3/a inch crimped top iron pipe; thence South 89° 53'
31" West, 311.27 feet to a 5/8 inch iron rod and being the Northeast corner of _
that parcel of land first described in that Boundary Line by Agreement,
recorded as Document No. 75-15343 of the Official Record of Jackson
County, Oregon; thence leaving said agreement line, North 00° 18' 53" West,
666.31 feet to a 5/8 inch iron rod; thence South 89° 31' 33" East, 340.84 feet
to a 5/8 inch iron rod, thence south 05° 54' 53" West, 415.56 feet to a 5/8 iron
rod; thence South 88° 10' 59" East, 137.42 feet to a 5/8 inch iron rod; thence
South 00° 19' 18" West, 8.44 feet to a 5/8 inch iron rod; thence East, 194.99
feet to a 5/8 inch iron rod situate in the Westerly right of way of Tolman
Creek Road as bereinabove referred to; thence South 00° 04' 09" West along
said Westerly right of way, 236.52 feet to the point of beginning.
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EXHIBIT "B"
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PERSONAL PROPERTY
All playground equipment situated on the Property
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