Resolution No. 12-51 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 12- 51
A RESOLUTION APPROVING THE PURCHASE OF THE RANKIN PROPERTY, (TAX LOT 2S1
04DA 03500) AND AUTHORIZING THE CITY MANAGER TO TAKE ALL NECESSARY ACTION
TO COMPLETE THE PROPERTY PURCHASE ON BEHALF OF THE CITY
WHEREAS, between 2002 and 2004, the City of Tigard undertook slope stabilization measures to protect a
sanitary sewer line within the utility easement along Summer Creek in the area of 13001 SW Gallin Court;and
WHEREAS,the city has identified a problem at in this same area where the sanitary sewer line may be exposed
again unless soil stabilization and related work is completed;and
WHEREAS, a city capital improvement construction project is planned to repair the slopes,protect the sewer
line and make other improvements;and
WHEREAS,in order to complete the capital improvement construction project,it is necessary for the City to
acquire the Rankin property
WHEREAS,the city and the property owner have reached an agreement on the purchase/sale of the property;
this agreement is subject to City Council approval no later than December 14,2012.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City Council agrees to the terms of the Purchase Agreement, Escrow Instructions and
Post-Closing Occupancy Agreement (Attachment A), including the purchase price of
$515,000 for the Rankin property.
SECTION 2: The City Council authorizes the city manager to take all necessary action to complete the
Rankin property purchase on behalf of the city. This includes, but is not limited to, the
execution of a purchase agreement, post-closing occupancy agreement and closing
documents.
SECTION 3: This resolution is effective immediately upon passage.
PASSED: This day of 2012.
�41
-/City of Tigard
ATTEST: C�Uf\r cl! ?re t_( P-11
City Recorder-City of Tigard
RESOLUTION NO. 12
Page 1
PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
BETWEEN: Richard C. and Rose A. Rankin (collectively, "Seller")
And: City of Tigard, ("Purchaser")
a Municipal corporation
DATED: (� t/a,2012 ("Eff ective Date")
RECITALS
A. Seller owns certain real property in the city of Tigard, county of Washington,
Oregon, commonly known as 13001 SW Gallin Court, Tigard, OR 97223, further identified as
Tax Lot 3500 and Assessor's Map No. 2S104DA03500, which is more fully described on the
attached and incorporated Exhibit A (the "Property").
B. Seller desires to sell the Property, and Purchaser desires to purchase the Property
pursuant to the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Cash. The term"Cash"means (i) United States currency, (ii) a check currently
dated and payable to Escrow Holder, or(iii) U.S. funds credited by wire transfer into Escrow
Holder's bank account.
1.2 Closing. The process described in Article 9 of this Agreement.
1.3 Closing Date. Closing shall occur no later than forty-five (45) days after the
Effective Date, or on such other date as the parties may agree upon in writing.
1.4 Contingency Period. The period that ends thirty (30) days after the Effective
Date.
1.5 Deed. A statutory warranty deed in the form of Exhibit B attached hereto which
shall be used to convey the Property from Seller to Purchaser.
1.6 Earnest Money. The cash payable to Seller pursuant to Section 2.2 of this
Agreement in the amount of Five Thousand and No/100 Dollars ($5,000.00), plus all interest
which accrues thereon.
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1.7 Environmental Laws. Any federal, state, or local laws, ordinances, codes,
statutes, regulations, administrative rules, policies and orders, and other authority existing now or
in the future that classify, regulate, list, or define Hazardous Materials.
1.8 Escrow Holder. First American Title, located at 9200 SE Sunnybrook Blvd,
Suite 400, Clackamas, Oregon, 97015, Phone: (503) 659-0069.
1.9 Escrow. The escrow opened by Escrow Holder pursuant to this Agreement.
1.10 Hazardous Materials. Any toxic or hazardous substance, material, waste,
pollutant, contaminant, or infectious or radioactive material, including but not limited to those
substances, materials, waste, chemicals, or mixtures that are (or that contain any) substances,
chemicals, compounds, or mixtures regulated, either now or in the future, under any law, rule,
regulation, code or ordinance.
1.11 Post-Closing Occupancy Agreement. The agreement identified in Exhibit C.
1.12 Property. The term"Property" as defined in this Agreement, includes land
described in Exhibit A,together with all improvements, rights, privileges, servitudes and
appurtenances thereunto belonging or appertaining, including all right, title, and interest of
Seller, if any, in and to the streets, alleys, and rights-of-way adjacent to the land, which will be
transferred to Purchaser at Closing.
1.13 Property Documents. Any and all documents relating to or affecting the
Property, including without limitation,conditional use permits, land use approvals, land use
applications, permits, licenses, any agreements related to the Property that will survive Closing,
maps, development agreements, surveys and studies relating to the Property prepared by third
parties.
1.14 Purchase Price. Cash in the amount of Five Hundred Fifteen Thousand and
No/100 Dollars ($515,000.00).
ARTICLE 2
EARNEST MONEY AND PURCHASE PRICE
2.1 Sale of Property. Subject to the terms and conditions in this Agreement, Seller
agrees to sell the Property to Purchaser, and Purchaser agrees to buy the Property from Seller.
2.2 Earnest Money. Within five (5) business days after the opening of Escrow as set
forth in Section 3.1, Purchaser shall deposit the Earnest Money into Escrow. Escrow Holder
shall hold the Earnest Money in a non interest-bearing account that is FDIC insured, unless the
parties approve holding the Earnest Money in an interest bearing account. The Earnest Money
shall be refundable to Buyer until the Contingency Period (defined in Section 1.4) expires or the
conditions precedent to Closing set forth in Section 4 of this Agreement are waived in writing by
Purchaser; thereafter, the Earnest Money shall not be refundable except in the event of a Seller
default. The Earnest Money shall be applicable to the Purchase Price at closing.
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2.3 Purchase Price. The Purchase Price shall be paid by Purchaser in Cash to Seller
at the Closing, subject to any withholdings required pursuant to this Agreement. The Earnest
Money shall be applied to the Purchase Price.
ARTICLE 3
DELIVERIES TO ESCROW HOLDER
3.1 Opening of Escrow.
3.1.1 Within five (5) business days after the Effective Date, Purchaser and
Seller shall open Escrow by depositing with Escrow Holder the Earnest Money and a fully
executed photocopy of this Agreement for use as escrow instructions. Escrow Holder shall
execute the Consent of Escrow Holder which appears at the end of this Agreement and deliver a
fully executed consent to Purchaser and Seller.
3.1.2 Purchaser and Seller hereby authorize Escrow Holder to take necessary
steps for the Closing of this transaction pursuant to the terms of this Agreement.
3.1.3 Purchaser and Seller may jointly or separately prepare additional escrow
instructions. Escrow Holder may also provide general instructions. If there is any inconsistency
between the provisions of any of these instructions and this Agreement, the provisions of this
Agreement shall control.
3.2 Purchaser's Deliveries. At or before Closing, Purchaser shall deposit into
Escrow(i)the Earnest Money as provided in Section 2.2, (ii) the Purchase Price, (iii) an
executed and acknowledged counterpart acceptance of the Deed, (iv) an executed counterpart of
the Post-Closing Occupancy Agreement, and (v) all other documents and instruments reasonably
requested by Escrow Holder for Closing.
3.3 Seller's Deliveries. At or before Closing, Seller shall deliver into Escrow(i) an
executed and acknowledged counterpart of the Deed, (ii) an executed Certificate of Non-Foreign
Status, pursuant to Section 1445(b)(2)of the United States Internal Revenue Code, (iii) an
executed counterpart of the Post-Closing Occupancy Agreement, and(iv) all other documents
and instruments reasonably requested by Escrow Holder for Closing. At Closing, Seller shall
deliver possession of the Property to Purchaser, subject to the Post-Closing Occupancy
Agreement.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
4.1 Purchaser's Right to Analyze Property Documents. Within ten(10) days after
the Effective Date, Seller shall deliver all Property Documents in Seller's possession or control
to Purchaser. During the Contingency Period, Purchaser shall have the right to analyze the
Property Documents and determine, in Purchaser's sole, absolute and arbitrary discretion,
whether the Property is suitable for Purchaser's intended use.
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4.2 Purchaser's Right to Analyze Property. During the Contingency Period,
Purchaser shall have the right to analyze the Property and determine, in Purchaser's sole,
absolute and arbitrary discretion,whether the Property is suitable for Purchaser's intended use
(the"Study Period"). During the Contingency Period, Purchaser, or its agents shall have the
right to enter onto the Property upon one (1) days' notice to Purchaser,to conduct any and all
tests, investigations, and inspections deemed necessary by Purchaser, including without
limitation a Level I environmental site assessment, a geotechnical assessment or any other
assessments or inspections related to the drainage improvement project Purchaser is currently
designing for the Property. Such investigations and/or studies shall be conducted by Purchaser at
its sole expense. If the transactions contemplated in this Agreement fail to close for any reason other
than a breach of this Agreement by Seller, Purchaser shall promptly restore the Property to substantially
the condition the Property was in prior to Buyer's performance of any inspections or work. Purchaser
shall defend, indemnify and hold Seller harmless for, from, and against any claim, loss, or
liability, or any claim of lien or damage which arises in connection with any entry on the
Property by Purchaser or any activities on the Property by Purchaser, its agents, employees, and
independent contractors; provided,however, that Purchaser shall have no obligation to
indemnify, defend, or hold harmless Seller from any condition of the Property discovered by
Purchaser, or from any loss of marketability of the Property as a consequence of such discovery.
4.3 Notice of Termination; Failure to Notify. If Purchaser determines, in
Purchaser's sole, absolute, and arbitrary discretion,the Property is not suitable, Purchaser may
terminate this Agreement and cancel Escrow by delivering written notice of termination to Seller
prior to the expiration of the Contingency Period, in which case this Agreement shall
immediately terminate and Escrow Holder shall immediately return the Earnest Money to
Purchaser.
4.4 Review of Preliminary Report. Within ten(10) days after the Effective Date,
Seller shall provide Purchaser with a preliminary title report issued by the Escrow Holder,
describing title to the Property, and including legible copies of all recorded documents described
in the preliminary report and plotted easements (collectively,the "Preliminary Report"). On or
before ten(10) days after Purchaser's receipt of the Preliminary Report, Purchaser shall deliver
written notice of approval or disapproval of matters disclosed in the Preliminary Report, which
approval or disapproval shall be in Purchaser's sole and absolute discretion. Failure of Purchaser
to deliver notice of disapproval of any matters disclosed in the Preliminary Report within such
ten(10) day period shall be deemed rejection of all such matters. Unless a disapproved item is
waived pursuant to Section 4.6, the approved matters disclosed in the Preliminary Report along
with the standard printed exceptions on a form of title insurance policy, shall be the "Permitted
Exceptions" included as exceptions in the Title Policy, defined in Section 4.7.
4.5 Right to Cure Disapproval of Preliminary Report. If Purchaser delivers notice
of disapproval pursuant to Section 4.4 above, Seller may elect in writing, within five (5) days
thereafter,to agree to remove or otherwise cure,to Purchaser's reasonable satisfaction, any
disapproved item(s)prior to Closing. Notwithstanding any provision in this Agreement to the
contrary, Seller shall be obligated to remove any deeds of trust and other monetary liens (other
than liens for non-delinquent taxes and assessments).
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4.6 Failure to Cure Disapproval of Preliminary Report. If Seller fails to agree to
cure a disapproved item, or agrees to cure and thereafter fails to cure a disapproved item prior to
Closing, Purchaser shall have the right to (i)terminate this Agreement and receive a full refund
of the Earnest Money or(ii)waive in writing its prior disapproval of such item and accept title
subject to such previously disapproved item, by delivering written notice of Purchaser's election
to Seller prior to Closing.
4.7 Title Policy. Seller shall be unconditionally committed to procure from Escrow
Holder upon the Closing, an ALTA standard coverage owner's policy of title insurance for the
Property, with a liability limit in the amount of the Purchase Price, and insuring fee title vests in
Purchaser subject only to the Permitted Exceptions (collectively, the "Title Policy"). At
Purchaser's option, Purchaser may elect to have the Title Policy issued with endorsements and/or
in an ALTA extended coverage form,provided that Purchaser pays any additional costs
associated with issuance of such policy and pursuant to section 8.4 of this Agreement.
4.8 Approval of Leases; No Tenancies.
4.8.1 Leases. Within ten(10) days of the Effective Date, Seller will provide to
Purchaser copies of all current leases affecting the Property, and copies of any and all documents
other than leases which provide for or discuss any matters affecting the occupancy of the
Property by tenants, including but not limited to options to lease, relocation rights, termination
rights, and/or expansion or contraction rights (collectively,the "Lease Documents"). Purchaser
may terminate this Agreement at any time during the Contingency Period if Purchaser shall
determine in the exercise of its sole discretion that the documents described in Section 4.1 or the
Lease Documents are not satisfactory.
4.8.2 No Tenancies. At least five (5) days prior to the Closing Date, Seller
shall have terminated any tenancy provided for in the Lease Documents and rendered the
Property free of any occupants whatsoever.
4.9 Council Approval. This Agreement is contingent upon approval from the City
Council of the City of Tigard. If such approval is not received by December 14, 2012, Purchaser
shall have the right to terminate this Agreement and receive a full refund of the Earnest Money.
4.10 Statutory Disclosure Statement. Within ten (10) days after the Effective Date,
Seller shall deliver to Purchaser a completed statutory property disclosure statement
("Statement"). During the Contingency Period, Purchaser shall analyze the statement and
determine, in Purchaser's sole, absolute and arbitrary discretion, whether the Property is suitable
for Purchaser's intended use.
4.11 Settlement Agreement. The parties acknowledge that the Purchaser is
purchasing this Property as part of a settlement of Seller's tort claims related to the Property.
Purchaser's obligation to purchase the Property is expressly conditioned on the parties entering
into a settlement agreement resolving Seller's tort claims ("Settlement Agreement"). If the
parties have not entered into such Settlement Agreement by the expiration of the Contingency
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Period, this Agreement shall automatically terminate and the Earnest Money shall be returned to
Purchaser.
4.12 Contingency Failure. In the event any of the contingencies set forth in Section 4
are not timely satisfied or waived, this Agreement and the rights and obligations of the Purchaser
and the Seller shall automatically terminate, and the Earnest Money shall immediately be
returned to Purchaser.
ARTICLE 5
COVENANTS AND AGREEMENTS
5.1 Damage or Destruction; Eminent Domain. If, prior to the Closing, all or a part
of the Property is damaged or destroyed, or taken or appropriated by any public or quasi-public
authority under the power of eminent domain or such an eminent domain action is threatened
pursuant to a resolution of intention to condemn filed by any public entity, Purchaser may either
(i)terminate this Agreement and receive a refund of the Earnest Money, or(ii) elect to receive an
assignment from Seller in lieu of the part of the Property that has been so damaged or taken of all
of Seller's rights to any award and/or proceeds attributable to said damaged or taken part of the
Property, and the parties shall proceed to Closing pursuant to this Agreement.
5.2 Seller Indemnification; Insurance.
5.2.1 Seller shall defend (with counsel reasonably acceptable to Purchaser),
indemnify, and hold harmless Purchaser and its officers, managers, representatives, employees,
and agents (collectively,the"Indemnified Persons") from and against any and all claims,
demands, actions, suits, damages, liabilities, injury to persons or property, costs, penalties, fines
or expenses (including reasonable attorney, engineering, and other professional or expert fees)
which, in whole or in part, directly or indirectly, arise from or are in any way connected with
Seller's ownership of the Property prior to Closing. However, this indemnity obligation does not
apply to any claims that arise from, are connected with or are in any way related to flooding,
landslides or erosion that has and continues to occur and which is the subject of the Settlement
Agreement. Seller will hold Purchaser harmless from any claims by consultants Seller hired to
deal with the flooding/landslide/erosion issue.
5.2.2 From the Closing Date through the expiration or earlier termination of the
Post-Closing Occupancy Agreement described in Section 5.3 below, Seller shall maintain a
policy of commercial general liability insurance, in an amount of not less than One Million Two
Hundred Thousand and No/100 Dollars ($1,200,000.00) combined single limit, from a company
reasonably acceptable to Purchaser. Seller shall provide Purchaser with certificates of insurance
which, among other things, shall show Purchaser and it's officers, directors, and employees
named as an additional insured in such policy and shall provide Seller with a copy of the
insurance company's endorsement to the liability policy adding such additional insureds or other
evidence that Purchaser and the Indemnified Persons as additional insureds as provided in this
Section. Seller's liability shall not be limited to the policy limits of the above-required
insurance.
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5.2.3 The provisions of this Section 5.2 will survive Closing.
5.3 Post-Closing Occupancy Agreement. At Closing, Purchaser and Seller shall
sign the Post-Closing Occupancy Agreement, the form of which is attached hereto as
Exhibit C and incorporated herein by this reference. After Closing, the Seller shall be entitled
to remain on the Property without any obligation to pay rent to Purchaser pursuant to the terms
of the Post-Closing Occupancy Agreement. The provisions of this Section 5.3 shall survive
Closing.
ARTICLE 6
SELLER'S REPRESENTATIONS,WARRANTIES AND COVENANTS
6.1 Representations and Warranties of Seller. Seller represents, warrants, and
covenants that, as of the Effective Date, the end of the Contingency Period, and the Closing, that
all of the representations and warranties contained in this Agreement are and shall be true and
correct, and shall survive Closing for a period of one (1) year. Each of Seller's representations
and warranties is material to and is being relied upon by Purchaser and the continuing truth
thereof shall constitute a condition precedent to Purchaser's obligations hereunder. Seller
represents and warrants to Purchaser as follows:
6.1.1 Proof of Authority. Seller has authority and authorization to enter into
this Agreement and consummate the transaction contemplated by it, and shall deliver such proof
of the power and authority of the persons executing and/or delivering any instruments,
documents, or certificates on behalf of the Seller to act for or bind the Seller, as may be
reasonably required by the Escrow Holder and/or the Purchaser.
6.1.2 Title to the Property. Seller has sole legal and beneficial fee title to the
Property, and has not granted any person or entity any right or interest in the Property except as
set forth in this Agreement and in the Preliminary Report. Seller agrees to transfer to Purchaser,
via Deed, the Property, subject only to the Permitted Exceptions.
6.1.3 Property Documents, Lease Documents; No Defaults. To Seller's
knowledge, the Property Documents and Lease Documents delivered by Seller to Purchaser are
true, correct and complete copies and there are no other documents or instruments that would
constitute Property Documents or Lease Documents that have not been delivered by Seller or
otherwise made available to Purchaser. Seller is not in default under any Property Documents or
Lease Documents and to Seller's knowledge, no other party to the Property Documents or Lease
Documents is in default under such documents. Seller warrants that the services associated with
the Property Documents and Lease Documents, have been, or will be, paid for by Seller no later
than Closing.
6.1.4 Pending Transactions, Suits or Proceedings. Except for the tort claims
referenced in Section 4.11 of this Agreement, there are no transactions, suits, proceedings,
litigation (including zoning or other land use regulation proceedings), condemnation, or
investigations pending or to Seller's knowledge, threatened against or affecting the Property or
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Seller as the owner of the Property in any court at law or in equity, or before or by any
governmental department, commission, board, agency or instrumentality.
6.1.5 Defects. Except as set forth in the Statement, to the best of Seller's
knowledge, there are no latent or other defects or conditions on or about the Property that would
cause injury or damage to persons or property, or that would have a material adverse effect on
lawful uses of the Property.
6.1.6 No Further Encumbrances. As long as this Agreement remains in force,
Seller will not lease, transfer, option, mortgage, pledge, or convey its interest in the Property or
any portion thereof nor any right therein, nor shall Seller enter into any agreement granting to
any person or entity any option to purchase or rights superior to Purchaser with respect to the
Property or any part thereof.
6.1.7 Hazardous Materials. To Seller's knowledge, no Hazardous Materials
have been generated, disposed of, deposited or released (or caused to be generated, disposed of
or released) on, within, under, about or from the Property. To Seller's knowledge, no other party
or person has used, stored, transported, generated, disposed of or released on, within, under,
about or from the Property any Hazardous Materials. Without limiting the foregoing, neither
Seller nor, to Seller's knowledge, any other party, has installed, operated or maintained any
underground storage tanks on or adjacent to the Property, and the Property is not now, and has
never been, in violation and is not currently under investigation for the violation of any
Environmental Laws. To Seller's knowledge,there is no asbestos or lead paint on the Property.
Seller hereby assigns to Purchaser as of the Closing, to the extent assignable, all claims,
counterclaims, defenses or actions, whether at common law or pursuant to any other applicable
federal or state or other laws, if any,that Seller may have against third parties to the extent
relating to the existence of Hazardous Materials in, at, on, under or about the Property.
6.1.8 Access; Possession. The Property has legal and physical access to a
publicly-dedicated street or road. Except as reflected in the Lease Documents, there are no
leases or tenancies in effect on the Property and possession thereof can and will be delivered to
Purchaser upon Closing.
6.1.9 Construction or Other Liens. Seller warrants that, at the time of
Closing, no work, labor or materials have been expended, bestowed or placed upon the Property,
adjacent thereto or within any existing or proposed assessment district which will remain unpaid
at Closing or upon which a lien may be filed.
6.1.10 No Option or Right of First Refusal to Acquire Property. Seller
represents that no person or entity has any right of first refusal or option to acquire any interest in
the Property or any part thereof.
6.1.11 Conduct Pending Closing; Covenants.
6.1.11.1 Conduct of Property. Seller hereby agrees that Seller will
not modify, cancel, extend or otherwise change in any material manner any of the terms,
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covenants or conditions of the Property Documents or Lease Documents, nor enter into any
additional leases as to the Property without Purchaser's prior written consent, nor enter into any
other agreements having a material effect on the Property without the prior written consent of
Purchaser, which Purchaser shall not unreasonably withhold.
6.1.11.2 Binding Effect of Documents. This Agreement and the
other documents to be executed by Seller hereunder, upon execution and delivery thereof by
Seller, will have been duly entered into by Seller, and will constitute legal, valid and binding
obligations of Seller. To Seller's actual knowledge, neither this Agreement nor anything
provided to be done under this Agreement violates or shall violate any contract, document,
understanding, agreement or instrument to which Seller is a party or by which it is bound.
6.1.11.3 No Alterations. Seller will not make any material
alterations to the Property prior to the Closing.
6.1.11.4 Condition of the Property Through Closing. Seller
shall, between the Effective Date and the Closing Date: (i) maintain the Property in substantially
the same condition as it was on the Effective Date, with no tree cutting, timber harvesting or
altering of the Property in any way, (ii)keep all existing insurance policies affecting the Property
in full force and effect, (iii)make all regular payments of interest and principal on any existing
financing, (iv)pay all real property taxes and assessments against the Property prior to
delinquency, (v) comply with all government regulations, and (vi) keep Purchaser timely advised
of any repair or improvement required to keep the Property in substantially the same condition as
it was on the Effective Date.
ARTICLE 7
PURCHASER'S REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representation and Warranties. Purchaser represents and
warrants that, as of the Effective Date,the end of the Contingency Period, and Closing, all of the
representations and warranties of Purchaser contained in this Agreement are and shall be true and
correct, and shall survive Closing for a period of one (1) year. Each of Purchaser's
representations and warranties is material to and is being relied upon by Seller and the
continuing truth thereof shall constitute a condition precedent to Seller's obligations hereunder.
Purchaser represents and warrants to Seller as follows:
7.1.1 Authority. The execution and delivery of this Agreement has been duly
authorized and approved by all requisite action of Purchaser, and the consummation of the
transactions contemplated hereby will be duly authorized and approved by all requisite action of
Purchaser, and no other authorizations or approvals will be necessary in order to enable
Purchaser to enter into or to comply with the terms of this Agreement.
7.1.2 Binding Effect of Documents. This Agreement and the other documents
to be executed by Purchaser hereunder, upon execution and delivery thereof by Purchaser, and if
approved by City Council subject to Section 4.9 of this Agreement, will have been duly entered
into by Purchaser, and will constitute legal, valid and binding obligations of Purchaser. To
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Purchaser's actual knowledge, neither this Agreement nor anything provided to be done under
this Agreement violates or shall violate any contract, document, understanding, agreement or
instrument to which Purchaser is a party or by which it is bound.
ARTICLE 8
PRORATED FEES AND COSTS
8.1 Tax Prorations. Escrow Holder will prorate between the parties, based on the
latest information available to Escrow Holder, all taxes, bonds and assessments ("Taxes") for the
Property, except as provided in Section 8.2 below. If, after the Closing, either party receives a
bill for any Taxes, the parties agree that the Taxes shall be prorated between the parties to the
Closing Date. The party receiving the bill for the Taxes shall notify the other party in writing of
the amount of such Taxes and the party receiving that notice shall pay its prorated share of such
Taxes within thirty(3 0) days of demand therefore, but not later than ten (10) days prior to
delinquency. The parties' obligations under this Section shall survive Closing.
8.2 Penalties. Any penalties that would be due as a result of removal of the Property
from any tax deferral program shall be charged to Seller as though the Property were removed
from such program on the day prior to the Closing Date. Seller's obligations under this Section
shall survive Closing.
8.3 Seller's Fees and Costs. If the collective cost of the items set forth in Section 8.4
(i), (ii), (iii), and (v) exceeds $5,000, Seller shall pay the remainder of the amount owed.
8.4 Purchaser's Fees and Costs. Subject to Section 8.3, Purchaser shall pay (i) the
Escrow Holder's escrow fee, (ii) all recording charges; (iii)the costs for the Title Policy, if
requested by Purchaser, (iv) any extended coverage and endorsements for the Title Policy; and
(v) any transfer taxes. Purchaser's obligation to pay for items (i), (ii), (iii) and (v) shall not
exceed $5,000.
8.5 Other Costs. Except as otherwise provided in this Agreement, each party shall
bear and pay the expense of its own attorneys, accountants and other professionals incurred in
negotiating this Agreement. Seller will pay their own moving and relocation expenses.
ARTICLE 9
CLOSING
9.1 Closing. Escrow Holder shall close Escrow by (i) recording the Deed;
(ii) confirming execution of all documents necessary for Closing and (iii) delivering funds and
documents as set forth herein, when and only when all terms and conditions of this Agreement
have been met and each of the conditions set forth below have been satisfied:
9.1.1 Funds and Instruments. All funds and instruments required pursuant to
this Agreement have been delivered to Escrow Holder.
9.1.2 Satisfaction of Conditions Precedent. Each of the conditions precedent
set forth in the Agreement have been either satisfied or waived.
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9.1.3 Liens and Encumbrances. All liens and encumbrances required to be
paid by Seller have been paid and satisfied at Seller's sole expense, including without limitation
any trust deed or mortgage affecting the Property. The Property shall be conveyed free of
encumbrances, except for the Permitted Exceptions and those expressly accepted or waived by
Purchaser pursuant to the terms of this Agreement.
9.1.4 Assignment of Lease Documents. Seller shall have executed the
Assignment of Leases attached and incorporated to this Agreement as Exhibit D, if any
("Assignment of Leases").
ARTICLE 10
RECORDATION AND DISTRIBUTION OF FUNDS AND DOCUMENTS
10.1 Recorded Documents. Escrow Holder shall cause the County Recorder of
Washington County to mail the Deed to Purchaser.
10.2 Conformed Copies. Escrow Holder shall at Closing deliver to Seller and
Purchaser (i) a copy of the Deed, conformed to show recording date, and conformed copies of
each document recorded to place title in the condition required by this Agreement, (ii) a copy of
each non-recorded document received hereunder by Escrow Holder, and (iii) copies of all
documents deposited into Escrow to the parties herein.
10.3 Payment of Funds at Closing. Escrow Holder shall deliver at Closing all
amounts as set forth in the final, approved closing statement.
10.4 Original Documents. Escrow Holder shall at Closing deliver to Purchaser the
Original Assignment of Leases.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 Purchaser's Default. If Purchaser breaches this Agreement, which breach
Purchaser fails to cure within thirty(30) days after receipt of written notice thereof from Seller,
Purchaser shall be in default hereunder and Seller is entitled, as Seller's sole and exclusive
remedy, to liquidated damages pursuant to this Article. If Escrow fails to close due to
Purchaser's default, Purchaser shall pay all Escrow cancellation charges.
11.2 Seller's Remedies. In the event of Purchaser's default under this Agreement, the
Earnest Money shall be forfeited by Purchaser and retained by Seller as liquidated damages.
Such amount has been agreed by the parties to be reasonable compensation and the exclusive
remedy for Purchaser's default, since the precise amount of such compensation would be
difficult to determine. Seller shall have no right to any other damages, claims or actions against
Purchaser. By initialing this provision in the spaces below, Seller and Purchaser each
specifically affirm their respective agreement to this liquidated damages provision as Seller's
sole and exclusive remedy for Purchaser's default, and agreement that the sum is a reasonable
SUM.
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Purchaser's Initials Seller's Ini ' is
11.3 Seller's Default. If Seller breaches this Agreement, which breach Seller fails to
cure within thirty (30) days after receipt of written notice thereof from Purchaser, Seller shall be
in default of this Agreement. If Escrow fails to close due to Seller's default, Seller shall pay all
Escrow cancellation charges.
11.4 Purchaser's Remedies. In the event of Seller's default under this Agreement,
Purchaser shall have the right to either(i) terminate this Agreement, and upon such event the
Earnest Money shall be immediately refunded to Purchaser, or(ii) seek an action for specific
performance in order to enforce Purchaser's rights hereunder. No provision of this Agreement
shall be construed as waiving any of Purchaser's rights regarding eminent domain.
ARTICLE 12
ASSIGNMENT
12.1 Assignment by Purchaser. Purchaser may not assign or otherwise transfer any
of its rights or obligations under this Agreement.
ARTICLE 13
GENERAL PROVISIONS
13.1 Attorneys Fees. If any action is instituted between Seller and Purchaser in
connection with this Agreement,the party prevailing in such action shall be entitled to recover
from the other party all of its costs of action, including, without limitation, attorneys' fees and
costs as fixed by the court therein.
13.2 Construction of Agreement. The agreements contained herein shall not be
construed in favor of or against either party, but shall be construed as if both parties prepared this
Agreement.
13.3 Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof and all prior and contemporaneous
agreements, representations, negotiations and understandings of the parties hereto, oral or
written, are hereby superseded and merged herein. The foregoing sentence shall in no way affect
the validity of any instruments executed by the parties in the form of the exhibits attached to this
Agreement.
13.4 Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Oregon.
13.5 Joint and Several Liability. If any party consists of more than one person or
entity, the liability of each such person or entity signing this Agreement shall be joint and
several.
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50014-71176 72/95'WAIB'12.32012
13.6 Modification. No modification, waiver, amendment, discharge, or change of this
Agreement shall be valid unless the same is in writing and signed by all signatories hereto.
13.7 Real Estate Brokerage Commission. Purchaser and Seller represent and
warrant that no real estate agent or broker was involved in negotiating the transaction
contemplated herein. In the event any claims for real estate commissions, fees or compensation
arise in connection with this transaction, the party so incurring or causing such claims shall
indemnify, defend and hold harmless the other party from any loss or damage, including
attorneys' fees, that said other party suffers because of said claims. The obligations of the parties
in the prior sentence shall survive Closing or the termination of this Agreement.
13.8 Notice and Payments. Any notice or document to be given pursuant to this
Agreement must be delivered either in person, deposited in the United States mail duly certified
or registered, return receipt requested with postage prepaid, by electronic mail, or by Federal
Express or other similar overnight delivery service marked for next business day delivery.
Notices shall be effective upon receipt if delivered personally, upon confirmation of receipt if
sent by electronic mail, on the next day if sent by overnight courier, or two (2) days after deposit
in the mail if mailed. Any party listed below may designate a different address, which shall be
substituted for the one specified below,by written notice to the others.
If to Seller: Richard and Rose Rankin
13001 SW Gallin Court,
Tigard, O 97223 1
E-mail: DAO • UXV-\
with a copy to: David P. Morrison
Cosgrave Vergeer Kester LLP
888 SW 5th Ave., Ste. 500
Portland OR 97204
E-mail: morrison@cosgravelaw.com
If to Purchaser: City of Tigard
Attn: City Manager
City Hall
13125 SW Hall Blvd
Tigard OR 97223
E-mail: marty@tigard-or.gov
with a copy to : Jeff Bennett
Jordan Ramis PC
Two Centerpointe Drive, 6th Floor
Lake Oswego, OR 97035
Fax: (503) 598-7373
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50014-71176 72195�KMB12.32012
13.9 Remedies Cumulative. Except as specifically set forth herein, all rights and
remedies of Purchaser and Seller contained in this Agreement shall be construed and held to be
cumulative.
13.10 Severability. In the event that any phrase, clause, sentence, paragraph, section,
article or other portion of this Agreement shall become illegal, null or void or against public
policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null
or void or against public policy,the remaining portions of this Agreement shall not be affected
thereby and shall remain in force and effect to the fullest extent permissible by law.
13.11 Successors and Assigns. Subject to limitations expressed in this Agreement,
each and all of the covenants and conditions of this Agreement shall inure to the benefit of and
shall be binding upon the successors-in-interest, assigns, and representatives of the parties
hereto. As used in the foregoing, "successors" shall refer to the parties' interest in the Property
and to the successors to all or substantially all of their assets and to their successors by merger or
consolidation.
13.12 Time of the Essence. Time is of the essence of each and every provision of this
Agreement.
13.13 Legal Representation. Seller acknowledges that this is a legal document and
that Seller has been advised to obtain and has obtained the advice of legal counsel in connection
with its review and execution of this Agreement. Seller covenants that it will not deny the
enforceability of this Agreement on the basis that Seller elects not to obtain legal counsel to
review and approve this Agreement.
13.14 Waiver. No waiver by Purchaser or Seller of a breach of any of the terms,
covenants or conditions of this Agreement by the other party shall be construed or held to be a
waiver of any succeeding or preceding breach of the same or any other term, covenant or
condition herein contained. No waiver of any default by Purchaser or Seller hereunder shall be
implied from any omission by the other party to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect a default other than as
specified in such waiver. The consent or approval by Purchaser or Seller to or of any act by the
other party requiring the consent or approval of the first party shall not be deemed to waive or
render unnecessary such party's consent or approval to or of any subsequent similar acts by the
other party.
13.15 Negation of Agency and Partnership. Any agreement by either party to
cooperate with the other in connection with any provision of this Agreement shall not be
construed as making either party an agent or partner of the other party.
13.16 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays and legal holidays in the State of Oregon, except that if the last day of any
period falls on any Saturday, Sunday or such holiday, the period shall be extended to include the
next day which is not a Saturday, Sunday or such holiday.
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50014-71176 72195WMB'12:3.2012
13.17 Statutory Disclaimer. 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, 195.301 AND 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 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, 195.301 AND 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.
13.18 Counterparts. This Agreement may be executed in counterparts, each of which,
when taken together, shall constitute fully executed originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
SELLER PURCHASER
City of Tigard, an Oregon municipal
corporation
"4 By: By
chard6. R in Name: Mar c'- L— WI✓��
Its: C � Ma►�a�P►�
Rose A. Rankin
APPROVED AS TO FORM:
By:
��e 4V�U� --
City(16�y
Page 15 - PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
50014-71176 72195WMB/1213,1Z012
Exhibit A - Property
Exhibit B—Deed
Exhibit C—Post-Closing Occupancy Agreement
Exhibit D—Assignment of Leases
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500/4-71176 72195 XMBi12 3,2012
CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Agreement,
(ii) be the Escrow Holder under said Agreement, and(iii) be bound by said Agreement in the
performance of its duties as Escrow Holder; provided, however, the undersigned shall have no
obligations, liability or responsibility under this Consent or otherwise unless and until said
Agreement, fully signed by the parties, has been delivered to the undersigned.
DATED: ' 2012.
By:
Name:
Title:
CONSENT OF ESCROW HOLDER 50014-7117672195XMB-121312012
EXHIBIT A
Lot 21,Quail Hollow-West,'ngard,Washington County, Oregon.Together with an undivided
Interest In Tract "U".
Exhibit A 50011-71176 71195WMB/12/312012
EXHIBIT B
AFTER RECORDING RETURN TO:
City of Tigard
Attn: City Manager
City Hall
13125 SW Hall Blvd
Tigard OR 97223
UNTIL A CHANGE IS REQUESTED
SEND TAX STATEMENTS TO:
This space is reserved for recorder's use.
STATUTORY WARRANTY DEED
Richard and Rose Rankin, collectively, Grantor, whose address is: 13001 SW Gallin Court,
Tigard, OR 97223, conveys and warrants to CITY OF TIGARD, an Oregon municipal
corporation, Grantee, whose address is: 13125 SW Hall Blvd, Tigard OR 97223, the following
described real property free of encumbrances except as specifically set forth herein:
Lot 21, Quail Hollow-West,Tigard, Washington County, Oregon. Together with an undivided
interest in Tract "U".
The true consideration for this conveyance is Five Hundred Fifteen Thousand and no/100
($515,000.00). This conveyance is made subject to the matters set forth on Exhibit A attached
hereto.
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, SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009,AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
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
Exhibit B, Page 1 of 4
50014-71176 72195WMB/12;3/2012
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 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.
DATED this day of , 20_.
Richard C. Rankin
Rose A. Rankin
STATE OF OREGON )
ss.
County of )
This instrument was acknowledged before me on , 20 , by
Richard C. Rankin.
NOTARY PUBLIC FOR OREGON
My Commission Expires:
STATE OF OREGON )
ss.
County of )
This instrument was acknowledged before me on , 20 , by Rose A.
Rankin-.
NOTARY PUBLIC FOR OREGON
My Commission Expires:
Exhibit B, Page 2 of 4
50014-71176 711951 KMB11213.2012
ACCEPTED:
GRANTEE
CITY OF TIGARD, an Oregon municipal corporation
By:
Name:
Its:
STATE OF OREGON )
ss.
County of )
This instrument was acknowledged before me on , 20 , by
as of the City of Tigard, an Oregon
municipal corporation.
NOTARY PUBLIC FOR OREGON
My Commission Expires:
Exhibit B, Page 3 of 4
50014-71176 7219YKMB/111312012
Exhibit A
Exhibit A
500/4-3680♦72195UCMB/12/3/2012
Exhibit C
Post-Closing Occupancy Agreement
LEASE AGREEMENT
This Lease Agreement ("Lease") is entered by and between the City of Tigard, Oregon
("Landlord") and Richard and Rose Rankin ("Tenant") on , 2012 ("Effective
Date"). Landlord and Tenant may be referred to as "Party" or collectively be referred to as the
"Parties".
RECITALS
A. Landlord and Tenant entered into a Purchase and Sale Agreement with an
Effective Date of , 2012 ("Sale Agreement")through which Tenant agreed to
sell certain real property to Landlord located at 13001 SW Gallin Court, Tigard, OR 97223 (the
"Property"). The Sale Agreement contained a condition(the "Closing Condition") which
provided that upon closing the transaction, Landlord agreed to lease the entire Property back to
Tenant under the terms of a post-closing occupancy agreement. This Lease is the instrument
which, upon full execution by Landlord and Tenant, constitutes satisfaction of the Closing
Condition.
AGREEMENT
The Parties agree as follows:
1. PROPERTY. Landlord hereby leases the entire Property to Tenant pursuant to
the terms of this Lease.
2. LEASE TERM. The lease term will start on the Effective Date and unless it is
terminated earlier as provided in this Lease, will expire on the date that is one hundred twenty
(120) days after the Effective Date of the Sale Agreement (the "Expiration Date"). The time
between the Effective Date and the Expiration Date shall be the "Lease Term".
3. LEASE PAYMENTS.
3.1 Monthly Base Rent. Tenant shall not be obligated to pay to Landlord any
monthly base rent for the Property during the Lease Term.
3.2 Holdover Rent. Notwithstanding Section 3.1, because time is of the
essence for Landlord in obtaining complete possession and control of the entire Property on the
Expiration Date, in the event Tenant continues to possess all or any portion of the Property after
the Expiration Date, Tenant shall be obligated to pay Landlord holdover rent in the amount of
fifty and No/100 Dollars ($50.00)per day from the Expiration Date until the date the entire
Property has been returned to Landlord free of any possession by or possessory interest of
Tenant.
Exhibit C—Post-Closing Occupancy Agreement
Page 1 of 6 500/4-36804 72195\KMB/12/3/2012
3.3 Additional Rent. Additional Rent shall consist of all sums of money that
shall become due from and payable by Tenant to Landlord under this Lease.
4. SECURITY DEPOSIT. None.
5. AS IS, WITH ALL FAULTS CONDITION. As the previous owner of the
Property, Tenant is fully informed of all its physical conditions, and the physical condition of all
buildings, structures, and building systems. In addition, Tenant has inspected or had the
opportunity to inspect the Property, the fixtures, the grounds, building and improvements and
acknowledges that the Property is in acceptable condition, and is habitable. If at any time during
the Lease Term, in Tenant's opinion,the conditions change, Tenant shall promptly provide
reasonable notice to Landlord. Tenant shall take possession of the Property and all of its
improvements in an"AS IS CONDITION, WITH ALL FAULTS"basis. If this Lease required
Landlord to make any representations or warranties, express or implied, relating to the condition
of the Property or any improvements or building systems located on or in it, or to accept any
liability with respect to the physical condition of the Property, Landlord would have required
Tenant to pay monthly base rent.
6. DEFAULTS. If Tenant fails to perform or fulfill any obligation under this Lease,
including without limitation, its obligation to vacate the Property on or before the Expiration
Date, or shall abandon the Property for a period of more than thirty (30) consecutive days,
Tenant shall be in default of this Lease. Subject to any statute, ordinance or law to the contrary,
Tenant shall have seven(7) days from the date of notice of default by Landlord to cure the
default unless a longer cure period is required by Oregon statute. In the event Tenant does not
cure the default, Landlord may terminate the Lease, effective upon written notice to Tenant. In
the event of default, Landlord may also, as permitted by law, re-enter the Property and re-take
possession of the Property. The remedies set forth in this Section 6 shall not prevent Landlord
from pursuing any other remedy available at law or in equity.
7. QUIET ENJOYMENT. Tenant shall be entitled to quiet enjoyment of the
Property, and Landlord will not interfere with that right, as long as Tenant timely performs all of
its obligations under this Lease.
8. POSSESSION AND SURRENDER OF PROPERTY. Tenant shall be entitled
to possession of the Property on the Commencement Date. At the Expiration Date or earlier
termination of the Lease, Tenant shall remove all personal property and peaceably surrender the
Property to Landlord in good condition as it was at the Effective Date, reasonable wear and tear
excepted.
9. USE OF PROPERTY. Tenant shall only use the Property as a personal
residence. The Property shall not be used to carry on any type of business or trade, without prior
written consent of the Landlord, which may be withheld in Landlord's reasonable discretion.
Tenant will comply with all laws, rules, ordinances, statutes and orders regarding the use of the
Property.
10. ASSIGNMENT AND SUBLEASE. Tenant shall not be permitted to assign its
interest under this Lease nor shall Tenant be allowed to sublease any portion of the Property.
Exhibit C —Post-Closing Occupancy Agreement
Page 2 of 6 500/4-36804 72195VCMB/12/3/2012
11. DANGEROUS OR HAZARDOUS MATERIALS. Tenant shall not keep or
have on or around the Property (i) any item of a dangerous, flammable or explosive character
that might unreasonably increase the risk of fire or explosion on or around the Property, or(ii)
any item that might be considered a(A) hazardous or toxic substance, material or waste, or(B)
pollutant, under any federal, state, regional or local statute, law, regulation or order.
12. UTILITIES AND SERVICES. Tenant will be responsible for obtaining and
paying for all expenses related to Tenant's possession of the Property, including but not limited
to all utilities and services required on the Property.
13. ALTERATIONS AND IMPROVEMENTS; TENANT'S REMOVAL
RIGHTS. Tenant agrees not to make any improvements, alterations, or changes to the Property
without prior written consent of the Landlord. If any alterations, improvements or changes are
made to or built on or around the Property, with the exception of fixtures and personal property
that can be removed without damage to the Property, they shall become the property of Landlord
and shall remain at the expiration of the Lease.
14. DAMAGE TO PROPERTY TERMINATES LEASE. If the Property or part
of it is damaged or destroyed by fire or other casualty during the Lease Term, then this Lease
shall terminate as of the date of the casualty.
15. TENANT TERMINATION. Notwithstanding any other provision of this Lease,
Tenant may terminate this Lease, prior to the Expiration Date, by providing thirty (30) days prior
written notice to Landlord.
16. MAINTENANCE AND REPAIR. In consideration of the fact that this Lease is
entered into as a sale and leaseback transaction for consideration negotiated and paid on the
purchase, Tenant shall maintain the Property, and all buildings, improvements, fixtures,
appliances, equipment and building systems thereon, and effect, at Seller's expense, all repairs,
replacement or maintenance required to maintain the habitability of the Property under Oregon
law, including mowing, watering and otherwise maintaining the yard. Tenant shall maintain the
Property in at least as good a condition as the Property was in on the Commencement Date of
this Lease. Tenant shall promptly notify Landlord of any damage to, or destruction of the
Property.
17. RIGHT OF INSPECTION. Tenant agrees to make the Property available to
Landlord or Landlord's agents for the purposes of inspection or in case of emergency. Except in
case of emergency, Landlord shall give Tenant twenty-four (24) hours written notice of intent to
enter. Tenant shall not, without prior notice to Landlord, add, alter or re-key any locks to the
Property. At all times Landlord shall be provided with a key or keys capable of unlocking all
such locks and gaining entry. Tenant further agrees to notify Landlord in writing if Tenant
installs any alarm system, including instructions on how to disarm it in case of emergency entry.
18. LANDLORD RIGHT OF ENTRY; INDEMNIFICATION. During the Lease
Term, Landlord, or its agents, shall have the right to enter onto the Property upon one (1) days
notice to Tenant, to conduct any and all tests, investigations, assessments and inspections
deemed necessary by Landlord, or to do any site work on the Property related to the Project.
These tests, investigations, inspections, assessments and site work are collectively referred to as
Exhibit C—Post-Closing Occupancy Agreement
Page 3 of 6 500/4_3680472195T.MB/12/3/2012
"Work". The Work shall be conducted by Landlord or its agents at Landlord's sole expense.
Landlord shall defend, indemnify and hold Tenant harmless for, from, and against any claim,
loss, or liability, or any claim of lien or damage (collectively, "Claims") which arises in
connection with any entry on the Property by Landlord or any activities on the Property by
Landlord, its agents, employees, and independent contractors; provided, however, that Landlord
shall have no obligation to indemnify, defend, or hold harmless Seller for any Claim that, in
whole or in part, directly or indirectly, arises from or is in any connected with Tenant's prior
ownership of the Property.
19. ABANDONMENT. If Tenant abandons the Property or any personal property
during the term of this Lease, Landlord may at its option enter the Property by any legal means
without liability to Tenant and may at Landlord's option terminate the Lease. Abandonment is
defined as absence of the Tenant from the Property, for at least thirty(30) consecutive days
without notice to Landlord. Tenant agrees that if it vacates or abandons the Property and leaves
thereon any personal property, Landlord may deem the personal property to have been
abandoned by Tenant, in which case Landlord may treat this Lease as a bill of sale regarding
such personal property and dispose of such abandoned personal property in its sole discretion.
20. SECURITY. Tenant understands that Landlord does not provide any security
alarm system or other security for Tenant or the Property. In the event any alarm system is
installed, Tenant understands that such alarm system is not warranted to be complete in all
respects or to be sufficient to protect Tenant or the Property. Tenant releases Landlord from any
loss, damage, claim or injury resulting from the failure of any alarm system, security or from the
lack of any alarm system or security.
21. SEVERABILITY. If any part or parts of this Lease shall be held unenforceable
for any reason, the remainder of this Lease shall continue in full force and effect. If any
provision of this Lease is deemed invalid or unenforceable by any court of competent
jurisdiction, and if limiting such provision would make the provision valid, then such provision
shall be deemed to be construed as so limited.
22. INSURANCE:
22.1 Property Insurance. Landlord and Tenant shall each be responsible to
maintain appropriate insurance for their respective interests in the Property and any personal
property located on the Property. Tenant understands that Landlord will not provide any
insurance coverage for Tenant's property interests. Landlord will not be responsible for any loss
of Tenant's property, whether by theft,fire, riots, strikes, acts of God, or otherwise.
22.2 Liability Insurance. Tenant, at its sole cost and expense, shall maintain
at all times during the Lease Term, Commercial General Liability Insurance covering the insured
against claims of bodily injury,personal injury and property damage arising out of Tenant's use
of the Property, including a Commercial General Liability endorsement covering the insuring
provisions of this Lease and the performance by Tenant of the indemnity agreements set forth in
Section 23 of this Lease with a combined single limit of not less than One Million Two Hundred
Thousand ($1,200,000) aggregate limit. Tenant shall provide Landlord with a certificate of
insurance which, among other things, shall show Landlord and its officers, directors, and
employees named as an additional insured in such policy as provided in this Section. Such
Exhibit C—Post-Closing Occupancy Agreement
Page 4 of 6 50014-36804 72195UCMB/12/3/2012
liability insurance shall be primary and not contributing to any insurance available to Landlord
and Landlord's insurance shall be in excess thereto. The limits of such insurance shall not limit
the Tenant's liability. Tenant shall provide Landlord with a certificate of insurance obtained as
required by this section of the Lease.
22.3 Waiver of Subrogation. All insurance required of Tenant under this
Lease shall contain a clause pursuant to which the insurance carriers waive all rights of
subrogation against Landlord or Tenant with respect to losses payable under such policies.
Tenant and Landlord each waives any and all right of recovery against the other for loss of or
damage to such waiving party or its property, if and to the extent that such loss or damage is
insured against under any casualty insurance policy in force at the time of such loss or damage,
or which is to be insured against under the terms of this Lease.
23. TENANT'S INDEMNIFICATION. Except as provided for in Section 18, and
except to the extent of damage resulting from the negligence or willful misconduct of Landlord,
Tenant agrees to protect, defend(with counsel reasonably acceptable to Landlord) and hold the
Landlord harmless and indemnify the Landlord from and against all liabilities, damages, claims,
losses,judgments, charges, and expenses (including reasonable attorneys' fees, costs of court and
expenses necessary in the prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly, (i) Tenant's use of the
Property, (ii) from any activity,work or thing done, permitted or suffered by Tenant in or about the
Property, (iii) in any way connected with the Property or with the improvements or personal
property therein, including,but not limited to, any liability for injury to person or property of
Tenant or third party persons, and/or(iv) Tenant's failure to perform any covenant or obligation of
Tenant under this Lease. Tenant's agreement to indemnify Landlord pursuant to this Section 23
is not intended and shall not relieve any insurance carrier of its obligations under policies
required to be carried by Tenant pursuant to the provisions of this Lease. Tenant agrees that the
obligations of Tenant herein shall survive the expiration or earlier termination of this Lease.
24. BINDING EFFECT. The covenants and conditions contained in the Lease shall
apply to and bind the Parties and the heirs, legal representatives, successors and any permitted
assigns of the Parties.
25. TIME IS OF THE ESSENCE. Time is of the essence in this Lease. Tenant
acknowledges that Landlord intends to undertake a significant drainage improvement project on
the Property ("Project"), and that it is crucial for Tenant to promptly surrender the Property upon
expiration or earlier termination of this Lease.
26. COMPLIANCE WITH RESIDENTIAL LANDLORD AND TENANT ACT.
This Lease is intended to comply with the provisions of the Residential Landlord and Tenant
("Act"), ORS 90.100-90.840, in effect on the date first written above. If a court determines that
any provision in the Lease conflicts with the Act, the provisions of the Act shall control. This
Lease shall be deemed to be amended to comply with any statutory changes in the Act if such
changes apply retroactively to existing leases, but not otherwise.
27. ATTACHMENTS. The attached Smoke Detector Acceptance, Carbon
Monoxide Detector Acceptance and Lead-Based Paint Disclosure are made a part of this Lease.
Exhibit C—Post-Closing Occupancy Agreement
Page 5 of 6 500/4-3680472195\KMB/12/3/2012
28. SMOKE DETECTOR AND CARBON MONOXIDE ALARM. Tenant
acknowledges the presence of a smoke detector and a carbon monoxide alarm in fully
operational conditions in the dwelling unit on the Property. Instructions have been provided
about how to test the smoke detector and carbon monoxide alarm. Tenant has been instructed to
test the devices at least every six months and replace the batteries as needed and has been made
aware Landlord is not liable for loss or damage due to the failure of the smoke detector or carbon
monoxide alarm to operate. Tenant is required to immediately notify Landlord in writing of any
malfunction of the smoke detector or carbon monoxide alarm. Tenant shall not remove or
tamper with a properly functioning smoke detector or carbon monoxide alarm, including
removing any working batteries.
29. SMOKING POLICY. Pursuant to ORS 479.305, smoking is allowed on the
Property. Landlord is not responsible for any damage to person or property caused by smoking
on the Property, unless such damage is directly caused by Landlord.
30. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Oregon.
31. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the Parties with respect to the subject matter hereof and supersedes any prior understanding or
representation of any kind preceding the date of this Lease. There are no other promises,
conditions, understandings or other agreements, whether oral or written, relating to the subject
matter of this Lease. This Lease may be modified in writing and must be signed by both
Landlord and Tenant.
32. NOTICE. Any notice required or otherwise given pursuant to this Lease shall be
in writing and mailed certified return receipt requested, postage prepaid, or delivered by
overnight delivery service, if to Tenant, at the Property and if to Landlord: at the Tigard City
Hall Attn: City Manager, City Hall, 13125 SW Hall Blvd, Tigard, OR 97223. Either party may
change such address from time to time by providing notice as set forth above.
33. CUMULATIVE RIGHTS. Landlord's and Tenant's rights under this Lease are
cumulative, and shall not be construed as exclusive of each other unless otherwise required by
law.
34. WAIVER. The failure of either Party to enforce any provisions of this Lease
shall not be deemed a waiver or limitation of that Party's right to subsequently enforce and
compel strict compliance with every provision of this Lease.
35. LEGAL FEES. In the event of any legal action by the parties arising out of this
Lease, the non-prevailing party shall pay the prevailing party reasonable attorneys' fees and costs
in addition to all other relief at trial and on any appeal therefrom.
Exhibit C—Post-Closing Occupancy Agreement
Page 6 of 6 500/4-36804 72195UCMB/12/3/2012
36. COUNTERPARTS. This Lease may be executed in counterparts, each of which,
when taken together, shall constitute fully executed originals.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed the day and year
first above written.
LANDLORD:
City of Tigard
TENANT:
Richard C. Rankin
Rose A. Rankin
Exhibit C —Post-Closing Occupancy Agreement
Page 7 of 6 50014-36804 72195UCMB/12/3/2012
RESIDENTIAL LEASE
DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT
OR LEAD-BASED PAINT HAZARDS
Lead Warning Statement
Housing built before 1978 may contain lead-based paint. Lead from paint,paint chips and dust can pose health
hazards if not managed properly. Lead exposure is especially harmful to young children and pregnant women.
Before renting pre-1978 housing, landlords must disclose the presence of known lead-based paint and/or lead-
based paint hazards in the dwelling. Tenants must also receive a federally approved pamphlet on lead poisoning
prevention.
Landlord's Disclosure
(a)Presence of lead-based paint and/or lead-based paint hazards(Check(i)or(ii)below):
(i) Known lead-based paint and/or lead-based paint hazards are present in the housing(explain):
(ii) Landlord has no knowledge of lead-based paint and/or lead-based paint hazards in the housing.
(b)Records and reports available to the landlord(Check(i)or(ii)below):
(i) Landlord has provided the tenant with all available records and reports pertaining to lead-based
paint and/or lead-based paint hazards in the housing(list documents):
(ii) Landlord has no reports or records pertaining to lead-based paint and/or lead-based paint hazards
in the housing.
Tenant's Acknowledgment(initial)
(c) Tenant has received copies of all information listed above.
(d) Tenant has received the pamphlet Protect Your Family From Lead In Your Home.
Certification of Accuracy
The following parties have reviewed the information above and certify,to the best of their knowledge, that the
information they have provided is true and accurate.
Landlord Date
Tenant Date Tenant Date
50014-36804 72195\KMB/12/3/2012
CARBON MONOXIDE ALARM DISCLOSURE
The rental Property at 13001 SW Gallin Court, Tigard, OR 97223 is equipped with one or more
❑ battery-operated ❑ hard-wired (indicate which) carbon monoxide alarm(s) (hereinafter
"carbon monoxide alarm").
If the carbon monoxide alarm is battery-operated, the battery is a 10-year battery.
Landlord or agent(hereinafter"landlord") has tested the carbon monoxide alarm prior to this
tenancy and has determined that it is working properly, and the battery has power, as of
Tenant is responsible for testing the carbon monoxide alarm no less than every six months. The
manufacturer of the carbon monoxide alarm recommends testing every . To
test, tenant should press and hold the test button briefly. If the alarm does not sound, tenant must
notify landlord in writing immediately.
If available, the manufacturer's carbon monoxide alarm instructions are located
Tenant is responsible for replacing dead batteries, and must use only 10-year batteries.
Dated:
Landlord or Agent
Landlord's or Agent's Name (typed or
printed)
Acknowledged by:
Tenant
Tenant's Name (typed or printed)
NOTE: ORS 479.300 states,in relevant part: "No person shall remove or tamper with a properly functioning carbon monoxide
alarm* * *. This prohibition includes removal of working batteries."
46796-38565 72195WMB,11.3-2012
SMOKE ALARM DISCLOSURE
The rental Property at 13001 SW Gallin Court, Tigard, OR 97223is equipped with one or more ❑
battery-operated ❑ hard-wired(indicate which) smoke alarm(s) (hereinafter"smoke alarm").
If the smoke alarm is battery-operated, the battery is a 10-year battery.
Landlord or agent (hereinafter"landlord")has tested the smoke alarm prior to this tenancy and has
determined that it is working properly, and the battery has power, as of
Tenant is responsible for testing the smoke alarm no less than every six months. The manufacturer of
the smoke alarm recommends testing every . To test, tenant should press and
hold the test button briefly. If the alarm does not sound, tenant must notify landlord in writing
immediately.
If available, the manufacturer's smoke alarm instructions are located
Tenant is responsible for replacing dead batteries, and must use only 10-year batteries.
Dated:
Landlord or Agent
Landlord's or Agent's Name (typed or printed)
Acknowledged by:
Tenant
Tenant's Name (typed or printed)
NOTE: ORS 479.300 states,in relevant part: "No person shall remove or tamper with a properly functioning smoke alarm* * *. This
prohibition includes removal of working batteries."
16796-38565 72/95'WMR 12 3:2012
Exhibit D
Assignment of Leases
46796-38565 72195WMB'12i3120/2