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HomeMy WebLinkAbout2012-056 Jt Escrow-Easement-Quitclaim-Wild Creek AGREEMENT AND JOINT ESCROW INSTRUCTIONS THIS AGREEMENT is executed by and among ESTELLE H.VOELLER("Voeller"),ROY MARVIN,Trustee of the Malibar Group,LLC Retirement Plan(."Malibar"),and the CITY OF ASHLAND,OREGON,a municipal corporation("City of Ashland'. Recitals- A. Voeller owns the real property described as Lot 3 of the Wild Creek Subdivision, a Planned Community in the City of Ashland,Jackson County,Oregon(the"Voeller Property"). B. Malibar owns the real property described as Lot 4 of the Wild Creek Subdivision,a Planned Community in the City of Ashland,Jackson County,Oregon(the"Malibar Property"). C. The City of Ashland is the approving authority for development applications in Ashland, Oregon,and is authorized on behalf of the public to establish and terminate easements for the benefit of the public. D. The parties desire to enter into this Agreement to facilitate the development of the Malibar Property and modification of easements located on the Voeller Property. IT IS THEREFORE AGREED as follows: 1. Transaction. Voeller agrees to grant a pedestrian easement across her property as detailed below provided Malibar provides the improvements described below and the City of Ashland terminates its existing pedestrian easement across the Voeller Property. Malibar agrees to provide the improvements to the Voeller Property provided Voeller executes the pedestrian easement described below. The City of Ashland agrees to terminate the existing pedestrian easement provided Voeller executes the replacement public easement and Malibar.provides said improvements. 2. Closing Date. The transactions contemplated by this Agreement shall be closed in escrow with Phyllis Strosser at Ticor Title Insurance. Malibar shall pay all costs associated with the escrow. The Closing Date shall be the date all of the conditions required herein have been met(the "Closing Date"). 3. Obligations of the Parties. 3.1 Oblieation of Voeller. As a condition of closing for the City of Ashland and Malibar's benefit,Voeller agrees to execute and now deposit with the title company the Bicycle and Pedestrian easement attached as Exhibit"i". 3.2 Obligation of City of Ashland. As a condition of closing for the benefit of Voeller and Malibar,the City of Ashland agrees to execute and now deposit with the title company the Quitclaim Deed and Termination of Easement attached as Exhibit"2". 1 -Agreement and Joint Escrow Instructions 3.3 Obligation of Malibar. As a condition of closing for the benefit of Voeller and the City of Ashland,Malibar agrees to complete the following tasks prior to closing: 3.3.1 Finish the road bed at the west side of the Voeller Property with asphalt to its west boundary. This paving shall occur in connection with the installation of the infrastructure for Phase 1 of the Tolman Meadows Subdivision. Any damage to the roadway or ancillary facilities shall be paid for by Malibar. 3.3.2 Install a concrete sidewalk along the boundary between Lots 2 and 3. Both the paving and the sidewalk will meet City specifications. In addition,the sidewalk will be engineered in such a manner as not to cause surface water to drain onto the Voeller Property. Malibar shall obtain Voeller's approval of the plans for the sidewalk prior to commencement of construction. 1 3.3.3 Arrange for the relocation of the Talent Irrigation District connection serving Lot 3,as necessary,due to the foregoing improvements. This relocation shall meet all the Talent Irrigation District specifications. 3.3.4 Ensure the construction of the sidewalk and roadway shall not impair drainage capabilities of the existing surface drain on the west side of the Voeller Property. 'If necessary,a second catch basin will be installed west of the sidewalk of sufficient size to handle runoff from Lots 2 and 4. 4. Conditions of Closing. Each party's obligation under this Agreement is subject to the satisfaction at or prior to closing of all the other parties'obligations under this Agreement. Without limiting the generality of the foregoing,Voeller's obligations under this Agreement are contingent upon the completion of the construction work performed by Malibar to Voeller's reasonable satisfaction. S. Miscellaneous. 5.1 Binding Effect. This Agreement will be binding on and inure to the benefit of the parties and their respective heirs,personal representatives,successors,and [permitted)assigns. 5.2 Counterparts. This Agreement may be executed in counterparts,each of which will be considered an original and all of which together will constitute one and the same agreement. 5.3 Facsimile Si rpr atures. Facsimile.transmission of any signed original document, and retransmission of any signed facsimile transmission,will be the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmitted signatures by signing an original document. 5.4 Further Assurances. Each party agrees(a)to execute and deliver such other documents and(b)to do and perform such other acts and things,as any other party may reasonably request,to carry out the intent and accomplish the purposes of this Agreement. 5.5 Attorney Fees. If any arbitration,suit,or action is instituted to interpret or enforce the provisions of this Agreement,to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement,the party prevailing on an issue will be entitled to recover with respect 2-Agreement and Joint Escrow Instructions to such issue,in addition to costs,reasonable attorney fees incurred in the preparation,prosecution, or defense of such arbitration, suit,or action as determined by the arbitrator or trial court,and if any appeal is taken from such decision,reasonable attorney fees as determined on appeal. 5.6 Entire Agreement. This Agreement(including the documents and instruments referred to in this Agreement)constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements,whether written or oral,among the parties with respect such subject matter. ESTELLE H.WELLER Date "Voeller" THE MALIBAHG PLO UP-EEC r B VIN Date Tru ee of the Malibar Group, LLC CITY OF ASHLAND,a Municipal Corporation By: DAVE KANNER Date City Administrator STATE OF OREGON ) ) ss County of Jackson ) On this U day ofL_0+ ) , 2012,personally appeared the above-named Estelle H. Voeller and acknowledged the foregoing instrument to be a voluntary act. Before me: OFFICIAL SEAL DAWN CALDWELL Notary Public for Oregon NOTARY PUBLIC-OREGON T }1 �p(�s A4GU&T 662014 My Commission Expires: County of Jackson ) On this 5 day ofJw ,2012,personally appeazed the above-named Roy Marvin and acknowledged the foregoing instrument to be a voluntary act. Before me; �,CGL wyL! Notary Public for Oregon My Commission Expires: 3 -Agreement and Joint Escrow Instructions OFFICIAL SEAL DAWN CALDWELL NOTARY PUBLIC-OREGON COAM MY MMUL4 M MM EXPI EB UGUBT 2460587 8 520714 STATE OF OREGON ) ss County of Jackson ) On this_day of 2012,personally appeared the above-named Dave Kanner,City Administrator for the City of Ashland,Jackson County,Oregon,and acknowledged the foregoing instrument to be a voluntary act and executed with authority of the City of Ashland. Before me: Notary Public for Oregon My Commission Expires: DAVIS,HEAtw &BRIDGES A Ptdmio.W Ca jjon 615 EAST M N STREET ASHLAND,OREGON 97520 - Deed -4- (541)492-3111 FAX(&1)466-4455 waw.EaWdwernmm ExHIBrr r . PAGE OF Easement Estelle IL Weller,Grantor 3784 Coleman Creek Road Medford, OR 97501 City of Ashland, Grantee 20 E. Main Street Ashland,OR 97520 After Recording Return To; Barbara Christensen,City Recorder 20 E. Main Street Ashland,OR 97520 PERMANENT BICYCLE AND PEDESTRIAN EASEMENT FOR CITY OF ASHLAND 1. Grant of Easement. The above named Grantor grants to the City of Ashland, Oregon, "Grantee", a perpetual non-exclusive easement in gross to use, operate, inspect, repair, maintain and remove and replace a public pedestrian and bicycle easement across, along and upon the real property described below and further referred to in this easement agreement as the "Easement Area". The Easement Area can be utilized for pedestrian and bicycle access only. The Easement Area is located in Jackson County, Oregon and is described as: The 25 foot wide mutual private access and public utility easement dedicated on the Plat for Wildcreek Subdivision recorded April 19, 1996 in Volume 21 of the Plats at Page 18 of the Records of Jackson County, Oregon, and depicted on the Wildcreek Subdivision Plat Map as "Private Access Easement". 2. Non-Exclusive Use of the Easement. This easement is non-exclusive and Grantor expressly reserves the right to use the Easement Area for all lawful purposes jointly and in common with Grantee for the benefit of all or any portion of the Grantor's Property. In addition, the owners of Lots 1 and 2 in the Wildcreek Subdivision have a pre-existing private access easement, and such owners have a right to use the Easement Area for vehicular ingress and egress as well as utility access in the Easement Area jointly and in common with Grantee. 3. Maintenance. The Easement shall be maintained by a Homeowners Association to be established for the Tolman Meadows Subdivision or Planned Community. The owner of Lot 4 of the Wildcreek Subdivision shall be responsible for establishing such Homeowners Association and ensuring the assumption of maintenance obligations by that Association. The parties to this Agreement agree that the maintenance of the Easement shall be governed by this instrument in conjunction with the maintenance obligations contained within Instrument No. 96- Revised 2/28/12 EXHIBff�� PAGE—.2—OF 12488, recorded in the Jackson County, Oregon Deed.Records. The Tolman Meadows Association shall be responsible for the removal of obstructions along with any vegetation which grows on the access way. It shall also be responsible for sealing cracks which may develop, to keep the access way safe for pedestrians and bicycles, but any replacement of the pavement shall be controlled by the terms of Instrument No. 96-12488, as well as the repair of damage caused by an owner of Wildcreek Lots 1 —3 or their invitees and licensees. 4. Indemnification. Grantee, its successors, assigns, agents and invitees, shall indemnify and hold Grantor, its successors, assigns, agents and invitees, harmless against any claim for injury to person or property which occurs, or is alleged to have occurred, during the course of a crossing of Grantor's land by any person, other than Grantor and grantor's successors and assigns. This shall include any settlement, judgment and costs of defense, including legal fees and disbursements. 5. Prior Encumbrances. This easement is granted subject to all prior easements or encumbrances of record. 6. Easement Use by Public. The parties to this Agreement intend that the use by the public of the Easement shall be for recreational, pedestrian and bicycle access and any such use shall be construed in observance of the policies and activities contemplated under ORS 105.672- 700. GRANTOR: ESTELLE H..VOELLER Date MALIBAR GROUP,LLC RETIREMENT PLAN; OWNER OF LOT 4 OF WILDCREEK SUBDIVISION: ROY MARVIN,Trustee of the Malibar Date Group, LLC Retirement Plan GRANTEE: CITY OF ASHLAND By. DAVE KANNER, City Administrator Date Revised 2/28/12 PAGE 3 OF STATE OF OREGON ) ' ss. County of Jackson ) On this day of 2012, personally appeared the above- named ESTELLE H. WELLER and acknowledged the foregoing Permanent Bicycle and Pedestrian Easement to be her voluntary act and deed. Before me: Notary Public for Oregon STATE OF OREGON j ss. County of Jackson } On this day of 2012, personally appeared the above- named ROY MARVIN, who being sworn, stated that he is a Trustee of the Malibar Group, LLC Retirement Plan, an Oregon limited liability company, and that the foregoing instrument was voluntarily signed on behalf of said limited liability company and by authority of its Operating Agreement. Before me: Notary Public for Oregon Revised 2/28/12 EXHIBIT PAGE O STATE OF OREGON ) ss. County of Jackson ) On this_day of February,2012,personally appeared the above-named Dave Kanner, City Administrator for the City of Ashland, and acknowledged the foregoing instrument to be a Voluntary act. Before me: Notary Public for Oregon Revised 2/28/12 EXHIBIT"2" UNLESS A CHANGE IS REQUESTED, ALL TAX STATEMENTS SHALL BE SENT TO THE FOLLOWING ADDRESS: No change AFTER RECORDING,RETURN TO: Timothy L.Jackle Foster Denman,LLP Post Office Box 1667 Medford,OR 97501 QUITCLAIM DEED AND TERMINATION OF EASEMENT CITY OF ASHLAND, a municipal corporation of the State of Oregon, Grantor, releases and quitclaims to ESTELLE H.VOELLER,Grantee, all right,title and interest in and to the real property located in Jackson County,Oregon, and legally described as Lot 3,W ildcreek Subdivision,City of Ashland,County of Jackson and State or Oregon,for purposes of extinguishing the easement delineated as a Pedestrian and Bicycle Easement on the W ildcreek Subdivision Plat recorded April 19,1996 in Volume 21 of Plats at Page 18 of the Records of Jackson County,Oregon. The true consideration for this conveyance is other value given, BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS,IF ANY,UNDER ORS 195-300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS 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 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 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, 195.301 AND 195.305 TO 195336 AND SECTIONS 5 TO 11,CHAPTER 424,OREGON LAWS 2007. DATED this_day of 2011. CITY OF ASHLAND,OREGON an Oregon municipal corporation By: Its: Exhibit"2"—Agreement and Joint Escrow Instructions STATE OF OREGON ) )ss. County of Jackson ) On this day of September, 2011, personally appeared the above-named who being sworn, stated that he/she is the of the CITY OF ASHLAND, a municipal corporation, and acknowledged the foregoing instrument to be his/her voluntary act and deed,and executed the document on behalf of the CITY OF ASHLAND. Before me: Notary Public for Oregon Exhibit"2"—Agreement and Joint Escrow Instructions Jackson County Official Records 2012-031543 R-OCD Cnt=1 MORGANSS 09/20/2012 10:24:55 AM $10.00$10.00$5.00$11.00$15.00 Total:$54.00 $3.00 Grantor: 1 City of Ashland 01546817201200315430020028 20 E Main Street 1,Christine Walker,County Clerk nor Jackson County,Oregon,certlry Ashland OR 97520 that the Instrument Iderthletl herein we.recorded rtletl In the Clark record.. Christine Walker-County Clerk Grantee: Malibar Group,LLC Retirement Plan 1405 Tolman Creek Road Ashland OR 97520 When Recorded Mail To: Jack Davis 515 E.Main Street Ashland,OR 97520 (This Space for Recorder's Use) OUITCLAIM DEED AND TERMINATION OF EASEMENT City of Ashland,a municipal corporation,hereby releases and quitclaims to Malibar Group, LLC Retirement Plan dated November 1,2003,Roy Marvin,Trustee, all right,title and interest of the undersigned, if any, in and to that certain real property situated in Jackson County, State of Oregon, described as: Lot 4, Wildereek Subdivision, City of Ashland, for purposes of extinguishing the easement delineated as a Pedestrian and Bicycle Easement on the Wildcreek Subdivision Plat recorded April 19, 1996 in Volume 21 of Plats at Page 18 of the Records of Jackson County, Oregon. The true and actual consideration for this transfer is other value given. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT,THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY,UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009. TIES INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS 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 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 215.0101 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 DAvis,HEARN,BRIDGES &ANDERSON A Professional Cwpwation Quitclaim Deed and 515 FAST MAIN STREET ASHLAND,OREGON 97520 Termination of Easement -1- (541)482-3111 FM(541)488-1455 .daNshamn.com OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009 DATED this day oL 491* 2012. "PP CITY OF ASHLAND By: JOIVV STROMBERG,Mayor STATE OF OREGON ) COUNTY OF JACKSON ) On this;z day of ,2012,personally appeared the above-named John Stromberg, Mayor, and acknowledged the for oing instrument to be a voluntary act. Before me: #:DIAOFFICIAL SEAL R SHIPLEY ARY PUBLIC-OREGON Notary Public for O ego' MISSION NO. 454135 My Commission Expires: NA EXPIRES NOVEMBER 28,2014 DAvis,HEARN,BRIDGES &ANDERSON AI`wfmim lCapmalim Quitclaim Deed and 515 EAST MAIN STREET ASHLAND,OREGON 97520 Termination of Easement -2- (541)482.3111 FAX(541)4984455 ..dav¢h¢am.c