HomeMy WebLinkAbout1991-019 Earnest Money Agrmt.MONEY AGREEMENT
~ARTIES AND PAYMENT:
RECEIVED BY ANN SALTER, GEORGE ESHOO, BARBARA ESHOO, ELLIS
WILSON, MILDRED WILSON, JOHN STRANBERG, and CAROLYN STP~NBERG,
hereinafter "Sellers" from THE CITY OF ASHLAND, OREGON, hereinafter
called "Purchaser", the sum of FIVE THOUSAND DOLLARS ($5,000.00),
as part payment of the purchase price of the following real
property located in the city of Ashland, County of Jackson, State
of Oregon.
The rear seventy-four feet four inches (74 ft 4 in.) of ta×
lots 6100 and 6200 which are located on the South East corner of
Second Street and Main Street in the city of Ashland, Oregon and on
the front of which there is a building presently occupied by
Century 21 and Domino's and adjacent to it, bare land. The rear
footage shall be measured from the rear lot line toward East Main
St. However, in no event shall the boundary line separating the
portion being sold from the portion being retained be further
toward Main Street than four inches north of the northern edge of
the retaining wall that presently exists on the property, and its
prolongation. A sketch of the land to be conveyed is attached
hereto as Exhibit "A", for identification purposes only.
The sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) on the
following terms:
Five Thousand Dollars ($5,000.00) earnest money deposited into
escrow, Twenty-five Thousand Dollars ($25,000.00) additional down
at closing. Balance of Seventy Thousand Dollars ($70,000.00) to
bear interest at the rate of ten percent (10%) per annum and to be
set forth in four equal Promissory Notes of Seventeen Thousand Five
Hundred Dollars ($17,500.00) each, one in favor of each of the
selling parties, to be payable monthly and fully amortized over a
period of fifteen (15) years from the date of the close of thi~
sale until the entire balance of both principal and inter~st is
paid in full, with the first monthly payment to be due on the lmt
day of July, 1991, and like payments on the same day of each and
every month thereafter until the entire Note, both principal and
all accrued interest, is paid.
A material consideration nf this sale is that the interest
Sellers receive on the Notes will be exempt from United States and
State Income taxes. In that regard, the Sellers will obtain within
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1 EARNEST MONEY AGREEMENT
three weeks of execution of this earnest money an open,on from a
competent boDd counsel retained by Sellers indicating counsel's
belief that the proposed transaction qualifies for such tax exempt
status. The cost of such opinion, up to a maximum responsibility
of One Thousand Dollars ($1,000.00) , is to be paid by the
Purchaser. Notwithstanding payment of all or a portion of bond
counsel's fee, Purchaser shall not be considered a client of such
of counsel for any purposes. Sellers shall disclose all relevant
facts to such counsel,., and if counsel's opinion is unfavorable
regarding an exemption, then the parties shall in good faith
attempt to resolve any melter which causes coons~l's unfavorable
opinion. If such condition fails and Sellers do not want to
proceed to closing, they shall promptly notify Purchaser in
writing, and authoriz~ refund of Purchaser's earnest money.
For the same consideration, the Purchaser agrees that under no
circumstances shall it be allowed to pre-pay any portion of either
principal or interest.
~ONI~ BTATEMENT;
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED
IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND
REGULATIONS. BEFORE SIGNING AND ACCEPTING THIS ~NSTRUMENT, THE
PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE
APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES.
~VIDENCE OF TITLE:
Sellers agrees to furnish at his expense a title insurance
policy in the amount of the purchase price, sliowing clear and
merchantable title in sellers except as to the acts of the
Purchaser subsequent hereto, reservations in Federal patents,
zoning ordinances and easements and restrictions now of record,
subject however, to the approval of the Purchaser of a Preliminary
Title Insurance Report with s~id approval not to be unreasonably
withheld. Such report shall be furnished to Purchaser for review
within ten (10) days of execution of this earnest money. Further,
it is expressly agreed that the Sellers will be allowed to transfer
the existing City assessment liens from the property being sold, to
the property being retained by the Sellers. If such title
insurance policy, or preliminary title report, does not show clear
and merchantable title, Sellers is allowed thirty (30) days to make
it so, after notice of such defect in writing from Purchaser. If
such title cannot be made clear and merchantable within such time,
Sellers, if requested by Purchaser, will refund to Purchaser this
earnest money payment and thereupon all rights of Purchaser
hereunder shall cease and terminate.
The parties recognize that the land being purchased
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encumbered by a security instrument in favor of Albert Meyer, and
as a condition preceden~ to the close of escrow, there must be
delivered to escrow for recording at closing a complete release of
the land being purchased from said security instrument so that the
land is not subject to any security interest in favor of Mr. Meyer
or any other party.
Possession of said premises shall be tendered to Purchaser at
the close of escrow.
CONV~¥A~OEI
The property is to be conveyed by a good and sufficient
warranty deed free and clear of all liens and encumbrances except
as set forth above in reference to the title insurance policy.
~RO-P~E.TAXEB[
The proration date shall be the date of the close of escrow
and the pro-rate of real property taxes shall be based upon the
total square footage of existing tax lots 6100 and 6200, as
follows:
The current tax bills will show the assessed value of the land
in Tax Lots 6100 and 6200 and the valu~ of the improvements on said
Tax Lots. From these tax bills, the total tax for the current tax
year for the total land will be determined. Then, the total square
footage of all land on said Tax Lots and also the %oral square
footage of land being ~old shall be determined, and the percentage
that the land being purchased bears to the whole land shall be
multiplied against the total tax allocated to the total land. This
figure will be the amount of tax to then be pro-rated between
Purchaser and Sellers, in the usual fashion.
The risk of loss or damage to said premises or property by
fire or other casualty, until possession is tendered to the
Purchaser, is assumed by Sellers.
Purchaser's rights herein are not assignable without consent
in writing from the Sellers. However, this prohibition on
assignment terr~inates upon the close of escrow and thereafter, the
Purchaser is not restricted in it's rights with respect %o the
subject property, except as otherwise set forth herein.
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~cRow_i
Sellers and Purchaser agree that the subject sale will be
closed in escrow. The cost of said escrow and the cost of
recording fees shall be shared equally between the Pure}laser and
the Sellers. The City waives its City lien search fee. Escrow
shall close no later than June 1, 1991.
ATTORNEY REPRESENTATO~.'
It is understood that until March 31, 1991 Ronald L. Salter
has been the City Attorney for the city of Ashland. However,
during all phases of the negotiation le~dlng to this agreement, the
city has been represented by Garrison Turner, attorney at law, and
the Purchaser is relying solely upon its staff and Garrison Turner
for advice in this transaction and will continue to do so during
all phases of this transaction.
ATTORNEY' 8 F~[
In case suit or action to enforce any rightm or conditions of
this agreement and upon any appeal to a higher court, it is
mutually agreed that the prevailing party in such suit or action
shall be entitled to a reasonable attorney's fees as determined by
the court as against the losing party therein.
NO WARRANTIES OR REPRES.ENTATIONS - %~URCHASER TAKES "AS IS":
Purchaser acknowledges that this property is being purchased
on the basis of its examination and knowledge of it, and its
opinion as to its value, and that no statements have been made by
the Sellers, or any agent of the Sellers, upon which it is relying,
except as expressly set forth in the next section or elsewhere in
this agreement; and further, that no agreement or promise to alter,
repair or improve said property has been made by Sellers, or any
agent of Sellers.
SELLERS INDEMNIFICATION AND HAZARDOUS MATERIALS LIABILITY~
(a) Sellers individually represent that they have not
deposit~d, or caused to be deposited, any "hazardous material" (as
that term is defined in the next sub-section) upon the property
being sold, or upon the property being retained, and that they have
no knowledge of the existence of any hazardous material upon either
portion of the property at the time the Sellers purchased the
property.
(b) For purposes of this section,
refer to and include: (1) any and
"hazardous substances", "hazardoum
substances" in the Comprehensive
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all ~ubstances
materials",
Environmental
"Hazardous Materials" shall
defined as
or .toxic
Response,
Compensation and Liability Act of 1980, as amended (42 USC section
9601, et seq.), the Hazardous Materials Transportation Act (49 USC
Seotion 1801, et. seq.), and the Resource Conservation end Recovery
Act (42 USC Section 6901, et. seq.); (2) any and all substances
deemed to be pollutants, toxic materials or hazardous materials
under any other state or federal law; and/or (3) any and all other
substances, the release into tile environment of which might
reasonably be deemed to carry the risk of injury or damage to any
person, animal, plant, or item of property.
(c) Sellers and their heirs, successors or assigns hereby
agree to indemnify and hold Purchaser, its successors a~3d assigns,
harmless from and against one-half of any loss, claim, damage,
demand, obligation, suit, or action, including attorney's fees and
costs incurred in connection with any governmental action, action
for personal injuries or property damage, or any appeal therefrom,
arising from any condition of the property being sold or the
property being retained, or release on said property, before the
time of Sellers. acquisition of the said property in any way
relating to "hazardous materials". This indemnity extends to any
such liability arising under the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA) 42 USC §9601-9675;
Resource Conservation and Recovery Act (RCRA) 42 USC §6901-6992;
Federal Clean Water Act 33 USC §1251-1389; Toxic Substances Control
Act (TSCA) 15 USC §2601-2671; ORS Chapters 465-468, inclusive; and
any other state or federal law. Sellers' indemnity obligations
under this subparagraph shall be subject to the following. If any
claim is asserted against Purchaser which would give rise to a
claim by Purchaser against Sellers for indemnification under the
provisions of this section, Purchaser shall promptly give written
notice to Sellers concerning such claim, seller shall have the
right to select counsel to represent or defend it in connection
with any such 10ss, claim, obligation, suit, action or proceeding.
(d) Notwithstanding any other provision of this agreement,
the obligations of the Sellers created in this section shall remain
in full force and effect until the expiration of the latest period
stated in any .applicable statute of limitations during which a
claim, cause of action or prosecution relating to the matters
described herein may be brought, and until payment in full or
satisfaction of any and all losses, claims, causes of actions,
damages, liabilities, charges, costs, and expenses shall have been
accomplished.
(e) This agreement is not intended to prejudice or affect the
rights of the parties against any third party for indemnity,
contribution, or that exist pursuant to then existing statutory or
case law.
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5 EARNEST MONEY AGREEMENT
1. Before the close of escrow, the Tax Lot boundary lines
will have to be changed so as to reflect this sale of land, and
this may be done either by a lot line adjustment or by a minor land
partition, at Sellers' choice. The land has been surveyed in 1980
as Survey Number 8320 with said survey being a matter of public
record. It shall be the obligation and expense of the Sellers to
accomplish such rearrangement of boundary lines so as to create a
single nsw Tax Lot which shall be the property being sold; the
Purchaser agrees to cooperate therein in any manner allowed by law.
2. The conveyance to the Purchaser shall contain 'the
following reservation of an easement:
Reserving to the grantors, their heirs, successors, and
assigns for a period of fifteen (15) years from the close of escrow
herein, or until the land being sold ceases to be used as a
municipal parking lot, whichever date shall be later, an easement
which shall allow acce~ ~rom the parcel being retained by grantors
onto the parcel being purchased. Grantors and Purchaser
acknowledge that at the time of sale and creation of this easement,
the point of access for the easement has not been exactly
determined, nor has the final design of the municipal parking lot.
To create as much certainty as possible, and to insure that
Grantors' access is perfected in a manner that assures that
Purchaser shall not suffer a net loss of any parking spaces as a
res~lt thereof, this easement is restricted to a single location of
access, which shall be 6 feet in width, and such access shall be
restricted to occurring totally within a 20 foot portion of the
northern boundary, 50-70 feet from the eastern boundary, as
illustrated on Exhibit "A". Purchaser shall design its parking let
so as to leave a five (5) foot wide space within the same twenty
(20) foot portion on Purchaser's side of the northern boundary; an
example is shown on Exhibit "A" for illustrative purposes only. If
said five (5) foot wide space needs to be moved by Purchaser
because of the exact location of the easement within the twenty
(20) foot area finally chosen by Grantors or their heirs,
successors, or assigns, such movement shall not cause the net loss
of the total number of parking spaces originally installed.
Grantors or their heirs, successors, or assigns shall pay for the
cost of any re-striping or other repairs or alterations required on
Purchaser's parking lot as a result thereof. With the exception of
the above-mentioned five (5) foot wide space on the Purchaser's
parking lot and any authorized alterations and re-striping just
provided for, this easement shall not otherwise interfere with
Purchaser's use of said property as a municipal parking lot, or be
in contravention of applicable land use and building code
provisions. This easement is not intended to, and shall not,
retain to grantors or their heirs, successors, or assigns any
particular right to use the land being conveyed, including for
Page - 6 EARNEST MONEY AGREEMENT
parking purposes, other than is allowed the general public by
applicable law, subject to any existing or future ordinances
restricting parking privileges of any persons in munioipal parking
lots. The easement herein reserved shall run with the land being
retained by grantors, subject to termination as provided for above.
Ali. costs associated with the installation of any improvement
constructed to effectuate this access easement, including costs of
repairs or alterations on Purchaser's land and any necessary
improvements thereon, and any future repair or maintenance costs
concerning said easement improvements, shall be the responsibility
of grantors and their heirs, executors, and assigns. Grantors and
their heirs, successors, and assigns shall have a continuing duty
to maintain and repair any improvement constructed pursuant hereto,
which shall include the duty to maintain and repair any improvement
on the land being conveyed which is constructed or altered to
effectuate this easement. Upon termination of this easement,
grantors or their heirs, executors and assigns shall be responsible
to pay for necessary removal of any improvements and consequential
repairs on Purchaser's land, and to bring any remaining
improvements of Grantor's into compliance with existing building
codes necessitated by such termination.
3. The Purchaser agrees to develop the land as a municipal
public parking lot, with such development to be completed no later
than July 30, 1992, and to use the land for such purpose for a
minimum of fifteen (15) years, from the date of close of escrow.
DATED at Ashland, Oregon, this /~ day of ~_. , 1991.
Page - 7 EARNEST MONEY AGREEMENT
~ASER:~
Mayor of AsHlan~ .
Recorder, City of Ashland
t4=02
503 482 1851 G. TURHER, ATTY, P.~5
ETATE OF OREGON )
Cotinty of Jackson )
Th'e foreg~o~ing instrument wa~ acknowledged before me this
day of. ~ , 1991, by ~/~}]~4/ ~./,~/~
STATE OF OREGON )
County of Jackson )
My Comm. is~ion Expires
The foregoing instrument was acknowledged before me this ../~
day of .....~. , 1991, by ~ ~. ~/~/~ ,
city Reeorde~ of the City of Ashland, Oregon.
i NOTARY I .;.:,I..;C ~,ORE.G.O~
[ My Commission Explres 5-~'~- -~¢
,PuEilc fo,r- Oregon
My commission Expires: ~-7~
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