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Res 2069 - 1750 Park Ave Surplus Property FHDCCOUNCIL BILL NO. 2991 RESOLUTION NO. 2069 A RESOLUTION TO SELL CITY OWNED SURPLUS PROPERTY LOCATED AT 1750 PARK AVE TO FARMWORKER HOUSING DEVELOPMENT CORPORATION (FHDC) AND AUTHORIZING THE CITY ADMINISTRATOR TO SIGN AN OPTION TO ACQUIRE REAL PROPERTY WITH FHDC WHEREAS, on October 26, 2015 the City Council declared 1750 Park Ave as surplus property by Resolution 2068; and WHEREAS, on October 26, 2015 the City Council received an offer from FHDC to purchase the subject property; and WHEREAS, the City Council has reviewed the information presented by staff and FHDC regarding the FHDC offer and the project's potential impacts to traffic congestion at the Hwy 214/ Park Ave intersection, City property fax receipts, and crime; and WHEREAS, the City Council directed staff to continue negotiations with FHDC with the intention of coming to terms for a purchase agreement for the property; and WHEREAS, due to the unknown environmental condition of the property, FHDC has proposed obtaining an option that would allow time for an environmental review prior to purchase; and WHEREAS, the City Council has determined accepting FDHC's offer to be in the best interest of City; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into an Option to Acquire Real Property, a copy of which is affixed hereto as Attachment "A" and by this reference incorporated herein, with FHDC for the sale of City owned surplus real property located at 1750 Park Ave. Section 2. That the City Administrator is authorized to sign said agreement on behalf of the City. Approved as to form: "� J / °3 Zo /S City Attorney Dat Page 1 - COUNCIL BILL NO. 2991 RESOLUTION NO. 2069 Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: IAJ� SQ'li" Heather Pierson City Recorder City of Woodburn, Oregon Page 2- COUNCIL BILL NO. 2991 RESOLUTION NO. 2069 Attachment A Option to Acquire Real Property This Option to Acquire Real Property ("Option Agreement") is made and entered into effective the day of 2015 ("Effective Date") by and between the City of Woodburn, Oregon, an Oregon municipal corporation (the "City") and the Farmworker Housing Development Corporation an Oregon nonprofit corporation, or assigns ("FHDC"). Whereas, the City of certain real property located in Woodburn Oregon and legally described in Exhibit A hereto, (the "Property"); and Whereas, FHDC is a nonprofit corporation whose purposes include the ownership, development and operation of housing to serve low income individuals and households; and Whereas, FHDC desires to develop the Property into approximately 44 units of housing to serve low income individuals and households; and Whereas, FHDC intends to use a variety of funding sources to develop the Property, including the utilization of Low Income Housing Tax Credits and other public funds; and Whereas, to facilitate its application for such financing, it is necessary for FHDC to have this Option Agreement and access to the Property during the Option Term (defined below); NOW, THEREFORE, in consideration of the payment to the City of the sum of Ten Dollars ($10), receipt of which is hereby acknowledged, and such other valuable consideration as the City shall obtain from the proposed development of the Property as low income housing, the City and FHDC agree as follows: 1. The City hereby grants FHDC or its assigns (as set forth in paragraph 6 below), the exclusive option to acquire the Property upon the terms and conditions set forth in the Purchase and Sale Agreement attached as Exhibit B hereto (the "Purchase Agreement"). 2. FHDC may exercise its option hereunder by executing and delivering to the City on or before 5:00 pm, August 31, 2016, the Purchase Agreement. The period of time between the Effective Date and FHDC's exercise of the Option is referred to herein as the "Option Term". 3. During the Option Term, and subject to the requirements of Section 4, below, FHDC may enter and conduct the following activities upon the Property: a. Inspections and investigations including but are not limited to a Phase 11 environmental assessment, verification of compliance of the Property with FHDC Option Attachment A applicable zoning, building, health and safety laws, regulations and codes, review of agreements affecting the Property, hazardous waste and environmental testing and all necessary, surveys, soils examinations, engineering tests and any other inspections or investigations of the Property. FHDC shall provide the City with a minimum of forty-eight (48) hours' advance written notice before entering the Property for any purpose other than to conduct any invasive inspection, test or examination, or Physical Testing, as defined below. FHDC's contractors may conduct invasive physical testing, drilling, boring, sampling and removal of, on or through the surface of the Property (or any part or portion thereof) including, without limitation, ground borings (collectively, "Physical Testing"). b. FHDC and its contractors, inspectors and agents will promptly restore any damage caused by any inspections, investigations or tests conducted pursuant to this Option Agreement. FHDC and its agents and contractors may access the Property during the Option Term for the purpose of inspecting the same. FHDC shall be responsible for the conduct of its employees, agents and contractors and shall indemnify, defend and hold the City harmless from any losses, injuries, damages, claims or expenses, including reasonable attorney's fees and costs, due to the conduct of FHDC or its employees, agents or contractors or that are due to any inspections, investigations or testing conducted pursuant to this Option Agreement. FHDC's restoration and indemnity obligations under this Section 3. B. will survive the termination of this Option Agreement. 4. Prior to initiating any work associated with its Phase II environmental assessment of the Property ("Phase II"), FHDC shall deliver to the City for City's review and approval a proposed scope of work including, without limitation, cost estimates for the work. The City's approval shall not be unreasonably withheld, conditioned or delayed. Upon completion of the Phase II, FHDC shall provide a copy of the report to the City without any representation or warranty of any nature whatsoever regarding the truth, accuracy or completeness of the Phase II. In the event FHDC does not exercise the Option or otherwise terminates this Option Agreement for any reason, FHDC shall be entitled to reimbursement from Seller for the costs of the Phase II. 5. During the Option Term, the City shall not in any way transfer, assign, convey or otherwise encumber its interest in the Property and FHDC shall have the exclusive right to acquire the Property. FHDC, in its sole and absolute discretion, may record a Memorandum of Option in the records of Marion County to provide notice of this Option Agreement. 6. FHDC may assign its interests under this Option Agreement to a limited partnership in which FHDC or an affiliate is a general partner upon written approval of the City, which approval shall not be unreasonably withheld, conditioned or delayed. [signatures on following pages] FHDC Option Signature Page Option to Acquire Real Property The City of Woodburn, Oregon an Oregon municipal corporation R -M Its STATE OF OREGON ) ) ss. COUNTY OF MARION ) Date Attachment A I certify that I know or have satisfactory evidence that is the person who appeared before me and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of City of Woodburn to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: t Name) Notary Public My appointment expires: FHDC Option Signature Page Option to Acquire Real Property Farmworker Housing Development Corporation an Oregon nonprofit corporation By Its STATE OF OREGON ) ) ss. COUNTY OF MARION ) Date Attachment A I certify that I know or have satisfactory evidence that is the person who appeared before me and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of the Farmworker Housing Development Corporation to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Print Name) Notary Public My appointment expires: FHDC Option Attachment A Exhibit A Legal Description of Property Beginning at the Northwest corner of that certain tract of land from Albert Lenners and Anna Lenners to the City of Woodburn, recorded August 28, 1956, in Vol. 491 and Page 549 of the Deed Records of Marion County, Oregon, which said corner is in the center of Park Avenue in Woodburn, Marion County, Oregon and thence running in an Easterly direction along the Northerly boundary of said Lenner's tract 435.60; thence Northerly and parallel to the center line of Park Avenue 360; thence Westerly and parallel to the Northerly line of the Lenners land heretofore referred to, 435.60' to the center of Park Avenue; thence Southerly 360' along the center line of said Park Avenue to the place of beginning. EXCEPTING THEREFROM a strip of land 60 feet wide parallel to the southerly border thereof and extending 435.60 feet Easterly from the center line of Park Avenue to be used for street purposes at such time as there is a continuing street open to the East thereof. FHDC Option Exhibit B Form of Purchase and Sale Agreement [see attached] FHDC Option Attachment A Exhibit B PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and between CITY OF WOODBURN, OREGON, an Oregon municipal corporation ("Seller"), and FARMWORKER HOUSING DEVELOPMENT CORPORATION, an Oregon nonprofit corporation, and its assigns ("Purchaser"). WHEREAS, Seller owns certain real property located at 1750 Park Avenue, and legally described on Exhibit A, attached hereto and incorporated herein by reference (the "Property"); WHEREAS, Purchaser desires to acquire the Property for the ownership, development and operation of housing to serve low income individuals and households ("Project"); WHEREAS, Seller desires to sell the Property to Purchaser upon the terms and conditions set forth herein; WHEREAS, the effective date of this Agreement will be the date upon which the last of the parties hereto has executed this Agreement (the "Effective Date"), as evidenced by the dates next to the parties' signatures below. NOW, THEREFORE, in consideration of the mutual covenants and agreements of Seller and Purchaser (collectively, the "Parties"), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The foregoing recitals are true and correct. 2. Purchase Price. The purchase price for the Property is Three Hundred Fifty Thousand Dollars and No/100ths Dollars ($350,000.00) (the "Purchase Price"). The Purchase Price shall be payable in full at the Closing by wire transfer or certified or cashier's check. 3. Site Preparation. a) Upon waiver or satisfaction of the Financing Contingency (defined below), Purchaser shall retain the parties necessary to and shall commence environmental remediation, including remediation of the soils and any hazardous materials on site; as well as demolition of all buildings on the site, but not to include decommissioning of the existing well ("Site Preparation"), which shall be Seller's responsibility pursuant to subsection 3(b) below. For purposes of this Agreement, "Site Preparation Costs" shall be defined to mean all direct and indirect costs of Site Preparation, including the costs for permitting and other regulatory approvals related to the Site Preparation. b) Upon Purchaser's waiver or satisfaction of the Financing Contingency, Seller shall undertake, at its cost and expense, the decommissioning of the existing groundwater well on the Property and the removal of all well - related equipment, excluding the building housing the well and equipment. 1 FHDC-WOODBURN PURCHASE AGREEMENT c) Seller shall retain sole ownership of all well -related equipment removed. Seller's work under this subsection shall be initiated during or prior to Purchaser's Site Preparation at a time mutually agreed upon by the Parties, but in no event prior to satisfaction of Purchaser's Financing Contingency. d) Upon Purchaser's waiver or satisfaction of the Financing Contingency, Purchaser shall be responsible for the payment of all Site Preparation Costs, regardless of whether Purchaser terminates this Agreement for any reason (other than a default by Seller), incurred up to and including the date of termination. Upon such termination, FHDC shall ensure the site is restored to an equivalent or better condition than existed prior to Purchaser's entry and pay all costs associated with ensuring that condition. d) Purchaser shall have access to the Property as set forth in Section 7(b) below with respect to the Site Preparation activities identified herein. 4. Water Rights. No water rights are sold, conveyed, or transferred under this Agreement. 5. Deposit. Purchaser will, within five (5) days of the mutual execution of this Agreement, deposit with the Title Company, to be held in escrow, a Deposit in the amount of One Hundred and No/100ths Dollars ($100.00). The Deposit will be fully refundable to Purchaser unless and until the Site Inspection Contingency is satisfied or waived, at which time the Deposit will become nonrefundable except in the event of Seller default. The Title Company will apply the Deposit to the Purchase Price at Closing. 6. Closing. The consummation of the purchase and sale of the Property (the "Closing") will take place on the date that is 90 days following the date Purchaser releases or waives its Site Preparation Contingency or on an earlier date that is mutually acceptable to the Parties. The term "Closing Date" means the date of Closing. The Closing will be conducted through escrow with the Title Company (it being the intention of the Parties that all closing documentation and funds will be delivered to the Title Company). 7. Contingencies. a. Financing Contingency. Purchaser shall have until March 1, 2017 (the "Financing Contingency Period") to secure financing commitments satisfactory to Purchaser in its sole and absolute discretion (the "Financing Contingency"). If Purchaser fails to notify Seller that this condition is satisfied or waived at or before 5:00 p.m. of the last day of the Financing Contingency Period, then this Agreement shall terminate. If this Agreement is terminated pursuant to this subsection, both Seller and Purchaser shall be released and discharged from all further obligations under this Agreement, the Deposit will be immediately refunded to Purchaser, and the Parties will have no further liability or responsibility to each other, except for the provisions of this Agreement that expressly survive termination. 2 FHDC-WOODBURN PURCHASE AGREEMENT b. Site Preparation Contingency. Purchaser shall have 90 days from and after the satisfaction or waiver of the Financing Contingency to complete Site Preparation (the "Site Preparation Contingency"). Purchaser, its agents and contractors, shall have the right to conduct any and all necessary inspections, investigations, equipment staging and work on the Property pursuant to the terms of this Section 7.b for purposes of conducting the Site Preparation as set forth in Section 3 above. In addition to the Site Preparation itself, such inspections and investigations may include but are not limited to verification of compliance of the Property with applicable zoning, building, health and safety laws, regulations and codes, review of agreements affecting the Property, hazardous waste and environmental testing and all necessary, surveys, soils examinations, engineering tests and any other inspections or investigations of the Property. Purchaser shall provide Seller with a minimum of forty-eight (48) hours' advance written notice before entering the Property for any purpose other than to conduct the Site Preparation, any invasive inspection, test or examination, or Physical Testing, as defined below. In addition to the Site Preparation itself, Purchaser's contractors may conduct invasive physical testing, drilling, boring, sampling and removal of, on or through the surface of the Property (or any part or portion thereof) including, without limitation, ground borings (collectively, "Physical Testing"). Purchaser shall be responsible for the conduct of its employees, agents and contractors and shall indemnify, defend and hold the Seller harmless from any losses, injuries, damages, claims or expenses, including reasonable attorney's fees and costs, due to the conduct of Purchaser or its employees, agents or contractors or that are due to any inspections, investigations or testing conducted pursuant to this Agreement. Purchaser's restoration and indemnity obligations under this Section 7.b will survive the termination of this Agreement. Once commenced, Site Preparation Costs will be at the sole expense of the Purchaser. Unless sooner terminated by Purchaser, if Purchaser does not satisfy or waive this Site Preparation Contingency within 90 days of release or waiver of the Financing Contingency or completion of Seller's work in decommissioning the groundwater well, whichever is later, this Agreement shall terminate and the Deposit shall be returned to Purchaser. 8. Seller's Transfer of Property. During the term of this Agreement, Seller will not transfer, assign, convey or otherwise encumber the Property or any interest therein without the prior written consent of Purchaser, which may be given, withheld or conditioned in Purchaser's sole and absolute discretion ("Transfer"). This Agreement will survive any Transfer and be binding upon Seller's transferees, successors, and assigns. 9. Title. a. Title Review. i. Preliminary Commitment. Within ten (10) days following the 3 FHDC-WOODBURN PURCHASE AGREEMENT Effective Date, Seller will cause the Title Company to issue to Purchaser, at Seller's cost and expense a preliminary commitment (the "Preliminary Commitment") for the Title Policy referred to in Paragraph 9.b. showing the status of title of the Property, showing all exceptions and conditions, if any, affecting the Property which would appear in the Title Policy, and committing the Title Company to issue such a Title Policy to Purchaser. The Seller will also cause Title Company to concurrently deliver to Purchaser complete and legible copies of all instruments referred to in the Preliminary Commitment as conditions or exceptions to the title. Seller hereby authorizes and directs the Title Company to furnish to Purchaser the foregoing items. ii. Purchaser's Review. Purchaser shall have ten (10) days after receipt of the Preliminary Commitment and exception documents to notify Seller, in writing, of its approval and disapproval of each exception shown in the Preliminary Commitment. Purchaser's failure to notify Seller that it has disapproved a particular exception shall constitute Purchaser's approval of that exception. Any exception that Purchaser has approved shall become a "Permitted Exception". Notwithstanding the foregoing, Permitted Exceptions shall not include and Seller shall be required to remove "Monetary Encumbrances", which shall be defined to mean (x) any monetary liens, including, without limitation, the liens of any deeds of trust or other loan documents secured by the Property, other than in connection with Purchaser's financing, or (y) any mechanics' liens arising out of actions of Seller, expressly excluding mechanics' liens arising out of the actions of Purchaser or its agents. iii. Seller's Response. Seller shall have ten (10) days after receipt of Purchaser's notice to notify Purchaser, in writing, of its agreement to cure or remove any of the disapproved exceptions. Seller's failure to notify Purchaser that it will cure or remove a particular exception shall constitute Seller's refusal to cure or remove that exception. Seller shall remove or cure by Closing the exceptions it has agreed to remove or cure and the Monetary Encumbrances. iv. Purchaser's Rights._IfIf Seller does not agree to cure or remove all exceptions disapproved by Purchaser, Purchaser shall have ten (10) days from Purchaser's receipt of Seller's notice of the same or, if Seller has not provided such notice, then within ten (10) days of the deadline to provide it under Section 9.a.(iii) to notify Seller, in writing, whether it will in its sole discretion, waive such objections and close the transaction or terminate this Agreement. Purchaser's failure to give such notice shall constitute Purchaser's election to waive its objections and close the transaction. In that event, the disapproved exceptions shall become Permitted Exceptions. If Purchaser elects to terminate 4 FHDC-WOODBURN PURCHASE AGREEMENT this Agreement, Seller shall pay any cancellation fee or other cost of the Title Company, and this Agreement shall terminate and all rights and obligations of the parties shall terminate. v. Updated Title Matters. The foregoing notice and response procedures shall be repeated for any title exceptions first appearing after Purchaser's receipt of the initial Preliminary Commitment, except that if the time period for delivery of any notice extends beyond the Closing Date, such notice and all subsequent notices shall be delivered on or before the Closing Date. b. Title Policy. i. Delivery of Policy. At Closing, Seller will, at its sole cost and expense, cause the Title Company to issue to Purchaser an ALTA extended coverage owner's policy of title insurance, in the amount of the Purchase Price, insuring Purchaser against loss or damage arising from defects in title to the Property other than the Permitted Exceptions (the "Title Policy"). The policy shall contain such endorsements as shall be reasonably requested by Purchaser or its lender. If a survey is required in order to obtain the extended owner's coverage, Purchaser will pay for the survey and also pay for the cost of any endorsements requested by Purchaser. ii. Failure to Deliver Policy. If, at Closing, the Title Company will not insure the title as provided above, Purchaser may either proceed to close despite the lack of required insurance or terminate this Agreement. If Purchaser terminates this Agreement, Seller shall pay any cancellation fee of the Title Company, and this Agreement shall terminate and all rights and obligations of the parties shall terminate. 10. URA. The Parties acknowledge and agree that (1) Purchaser does not have the power of eminent domain and, therefore, will not acquire the Property if negotiations fail to result in an amicable and voluntary agreement, and (2) the estimated fair market value of the Property is the Purchase Price. 11. Seller's Obligations. Seller shall make all principal and interest payments due under, and comply with each and every covenant and obligation imposed upon the owner of the Property by promissory notes, mortgages, deeds of trust, ground or other leases and any other agreements affecting the Property, or secured by an interest in the Property or any part thereof, and will take any and all action as may be necessary to avoid any default under such agreements. 12. Warranties. a. Seller's Representations and Warranties. For the purposes of inducing Purchaser to consummate the transactions contemplated hereby. Seller 5 FHDC-WOODBURN PURCHASE AGREEMENT represents and warrants to Purchaser, as of the Effective Date and, except as otherwise set forth herein, as of the Closing Date, that to the best of Seller's knowledge and belief, the following are true: i. Seller has full power, authority and legal right to execute, deliver and perform this Agreement, and all other documents and certificates contemplated hereby; the Seller has duly authorized the execution, delivery and performance thereof, and has authorized the person executing this Agreement to do so; ii. This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms; iii. There are no actions, suits, proceedings, orders or investigations pending or, to the best of Seller's knowledge, threatened against or affecting Seller which might adversely affect Seller's performance under this Agreement or the consummation of the transactions contemplated hereby; iv. Except as expressly provided herein, there is not pending or, to the best of Seller's knowledge, threatened (i) condemnation or similar proceedings with respect to the Property or any part thereof, (ii) public improvements in, about or outside the Property which might result in the imposition of any assessment, lien or charge against Seller, the Property or any owner of the Property, or (iii) legal action of any kind or nature, affecting the Property, which would enjoin or restrict the right of Seller to consummate the transactions contemplated hereby. v. None of the following has occurred with respect to the Property or Seller: (i) appointment of a receiver, liquidator, or trustee for the real estate; (ii) institution of any proceeding for dissolution or liquidation; (iii) filing or any petition for bankruptcy, or action toward reorganization; (iv) pending foreclosure or forfeiture action. vi. All taxes and assessments and other governmental or quasi - governmental levies of any kind which are due for payment prior to the Effective Date, the non-payment of which would in any way affect the property or any part thereof, or the Purchaser's title thereto or in any way impose any liability on the Purchaser, have been paid, or shall be paid by Seller, prior to or at the time of Closing, together with all interest and penalties thereon. vii. The Property is not affected by any special assessment, whether or not a lien thereon, which has not or will not be paid in full by Seller prior to the Closing Date, nor does Seller know of any pending or contemplated assessments or similar charges which will affect the 6 FHDC-WOODBURN PURCHASE AGREEMENT Property; and b. Purchaser's Representations and Warranties. For the purposes of inducing Seller to consummate the transactions contemplated hereby Purchaser represents and warrants to Seller, as of the Effective Date and, except as otherwise set forth herein, as of the Closing Date, as follows: i. Purchaser has full power, authority and legal right to execute, deliver and perform this Agreement, and all other documents and certificates contemplated hereby; the Purchaser has duly authorized the execution, delivery and performance thereof, and has authorized the person executing this Agreement to do so; ii. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms; iii. There are no actions, suits, proceedings, orders or investigations pending or, to the best of Purchaser's knowledge, threatened against or affecting Purchaser which might adversely affect Purchaser's performance under this Agreement or the consummation of the transactions contemplated hereby. c. Survival. The representations and warranties in this section shall survive Closing for a period of twelve (12) months. 13. Closing. a. Seller's Closing Obligations. At the Closing, Seller shall: i. Execute, acknowledge and deliver (x) a [Statutory Warranty Deed] to the Property subject only to the Permitted Exceptions and (y) such other agreements, documents and instruments as may be necessary to transfer, convey and assign the Property to Purchaser; ii. Deliver to Purchaser, pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, a non -foreign affidavit, stating that Seller is not a foreign person and providing Seller's United States taxpayer identification number; and iii. Deliver to Purchaser such other instruments or documents as may be required pursuant to the provisions hereof or as mutually agreed by counsel for Seller and Purchaser to be necessary to fully consummate the transaction contemplated hereby. b. Purchaser's Closing Obligations. At the Closing, Purchaser shall: 7 FHDC-WOODBURN PURCHASE AGREEMENT i. Deliver to Seller cash or immediately available funds the remainder of the Purchase Price following application of the Deposit; and ii. Deliver to Seller such other instruments or documents as may be required pursuant to the terms hereof or mutually agreed by counsel for Seller and Purchaser to be necessary to fully consummate the transaction contemplated hereby. c. Allocation of Closing Expenses. The cost of closing the transaction shall be allocated between Seller and Purchaser as follows: i. Seller shall pay: 1. The premium for the ALTA owner's extended coverage vacant land Title Policy required by Paragraph 9.b.; 2. One-half of the escrow fees of the Title Company; and 3. The real estate excise tax and any other taxes and charges with respect to the transaction. ii. Purchaser shall pay: 1. One-half of the escrow fees of the Title Company; 2. The cost of the Title Policy that exceeds the cost of the ALTA owner's extended coverage, including the costs of survey if required by the Title Company; and 3. The cost of recording the statutory warranty deed and any other documents that Purchaser may choose to record. iii. All other expenses incurred by Seller or Purchaser with respect to Closing, including but not limited to attorneys' fees, shall be borne and paid exclusively by the party incurring the same unless the parties hereto expressly agree in writing to the allocation of part or all of such expenses to one of the parties. d. Proration. The following items shall be adjusted or prorated between Seller and Purchaser at the Closing, as of the Closing Date: i. Ad valorem, property and/or similar taxes (excluding assessments) for the then current tax year relating to the Property shall be prorated; and ii. All unpaid assessments, if any, existing as of the Closing Date, due 8 FHDC-WOODBURN PURCHASE AGREEMENT and payable before or after such date and applicable to the period of Seller's ownership of the Property, shall be paid by Seller in cash at the Closing to the assessing entity. e. Right to Possession. At the Closing and as a condition thereto, Purchaser shall have full and unrestricted right to possession of the Property subject only to the Permitted Exceptions. f. Risk of Loss. Risk of loss or damage to the Property by condemnation, eminent domain, or similar proceedings (or deed in lieu thereof), or by fire or any other casualty, from the Effective Date through Closing will be on Seller and thereafter will be on Purchaser. Seller will immediately notify Purchaser in writing of any such loss. Purchaser shall notify Seller, in writing, within fifteen (15) days of Purchaser's receipt of Seller's notice whether Purchaser shall proceed to Closing. Purchaser's failure to notify Seller that it will proceed to Closing shall constitute notice of disapproval of the loss. If Purchaser disapproves this loss, Seller shall pay any cancellation fee or other cost of the Title Company, and this Agreement shall terminate and all rights and obligations of the parties shall terminate. 14. Assignment. Purchaser may assign its rights and obligations under this Agreement subject to Seller approval which will not be unreasonably withheld. Purchaser must notify and request approval by Seller of any such assignment within a reasonable time prior to the Closing and the assignee will for all purposes be regarded as Purchaser under this Agreement. 15. Termination and Remedies. a. Default by Seller. i. Seller's Defaults. Seller shall be deemed to be in default hereunder in the event Seller fails, for a reason other than Purchaser's default hereunder, to meet, comply with, or perform any covenant, agreement or obligation on its part required within the time limits and in the manner required in this Agreement,. ii. Purchaser's Remedies. Unless otherwise specified herein, in the event of default by Seller, Purchaser may elect to (a) terminate this Agreement and receive a return of the Deposit; (b) and obtain reimbursement for all costs paid by Purchaser under Section 2 above, (b) bring suit for its damages, or (c) seek specific performance of this Agreement. b. Default by Purchaser. 9 FHDC-WOODBURN PURCHASE AGREEMENT i. Purchaser's Defaults. Unless otherwise specified herein, Purchaser shall be in default hereunder in the event Purchaser fails, for a reason other than Seller's default hereunder, to meet, comply with, or perform any covenant, agreement or obligation on its part required within the time limits and in the manner required in this Agreement, or there shall have occurred a breach of any representation or warranty made by Purchaser. ii. Seller's Remedies. In the event of a material default by Purchaser hereunder Seller's sole and exclusive remedy shall be to receive from purchaser the Deposit, it being agreed between Purchaser and Seller that the Deposit shall be liquidated damages for a default of Purchaser hereunder because of the difficulty, inconvenience and uncertainty of ascertaining actual damages for such default. Receipt of the Deposit shall constitute a waiver of any other remedies Seller may have under this Agreement, at law or at equity. c. Attorneys' Fees. Should either party bring an action to enforce or interpret any of the provisions of this Agreement, or to recover damages for the breach hereof, the prevailing party will be entitled to receive, in addition to any other relief granted, all reasonable attorney's fees and costs expended in connection therewith. 16. Brokerage Commissions. Any brokerage commissions due out of the transactions contemplated herein shall be the sole responsibility of the Seller. Upon closing Seller shall pay any commission due and payable from escrow proceeds. Otherwise, each party agrees to indemnify and hold the other harmless from any commission or claim thereof hereafter made against the other on account of any other broker or finder which the indemnifying party has engaged in connection with the transaction contemplated herein. 17. Entire Agreement. This Agreement sets forth the entire understanding between the Parties with respect to the transactions contemplated herein and supersedes all prior or contemporaneous agreements, oral or written. Neither this Agreement nor any provision hereof may be waived or amended except by an instrument in writing signed by both Parties. 18. Time of the Essence. Time is of the essence in the performance of this Agreement. 19. Survival after Closing. The terms and provisions of this Agreement will survive Closing and will remain in full force and effect thereafter. 20. Interpretation. Words of any gender used in this Agreement will be held and construed to include any other gender, and words of a singular number will be held to include the plural, and vice versa, unless the context requires otherwise. 10 FHDC-WOODBURN PURCHASE AGREEMENT 21. Captions. The captions used in this Agreement are for convenience only and will not be deemed to construe or to limit the meaning of the language of this Agreement. 22. Binding Effect. ffect. This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 23. Notices. All notices to either Party must be in writing and either delivered (i) in person, (ii) by United States certified mail, postage prepaid, (iii) by courier service, postage prepaid, or (iv) by facsimile transmission or electronic mail (email) with confirmed receipt or other evidence of transmission, and sent to the address (or facsimile number) of such Party as set forth below, or such other address (or facsimile number) as either Party may from time to time designate by written notice to the other. If to Purchaser: Roberto Jimenez, Executive Director Farmworker Housing Development Corporation 1274 Fifth St, Suite 1-A Woodburn, OR 97071 If to Seller: City Recorder 270 Montgomery Street Woodburn, OR 97071 All notices will be deemed given on the date such notice is delivered (or if refused, the date of such refusal) or transmitted by telephone facsimile or email, or on the third business day following the date such notice is mailed in accordance with this section, whichever is applicable. 24. Severability. If one or more of the provisions of this Agreement or any application thereof will be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or any other application thereof will in no way be affected or impaired. 25. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon. Venue of any action hereunder will be in Marion County, Oregon. 26. Calculation of Time. In the event that the date upon which any time period ends or any duty or obligation hereunder is to be performed will occur upon a Saturday, Sunday, national banking holiday or State of Washington holiday, then, in such event, the time period or the due date for such performance will be automatically extended to the next succeeding day that is not a Saturday, Sunday, national banking holiday or State of Washington holiday. Except for express reference to "business" days, all time periods will be deemed to be calendar days. [Signatures on Following Pages] 11 FHDC-WOODBURN PURCHASE AGREEMENT The parties have entered into this Purchase Agreement on the date first written above. SELLER: The City of Woodburn, Oregon an Oregon municipal corporation Date Its STATE OF OREGON ) ) ss. COUNTY OF MARION ) I certify that I know or have satisfactory evidence that is the person who appeared before me and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of City of Woodburn to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Print Name) Notary Public My appointment expires: 12 FHDC-WOODBURN PURCHASE AGREEMENT PURCHASER: Farmworker Housing Development Corporation an Oregon nonprofit corporation By Its STATE OF OREGON ) ) ss. COUNTY OF MARION ) Date I certify that I know or have satisfactory evidence that is the person who appeared before me and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of the Farmworker Housing Development Corporation to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Print Name) Notary Public My appointment expires: 13 FHDC-WOODBURN PURCHASE AGREEMENT EXHIBIT A Legal Description Beginning at the Northwest corner of that certain tract of land from Albert Lenners and Anna Lenners to the City of Woodburn, recorded August 28, 1956, in Vol. 491 and Page 549 of the Deed Records of Marion County, Oregon, which said corner is in the center of Park Avenue in Woodburn, Marion County, Oregon and thence running in an Easterly direction along the Northerly boundary of said Lenner's tract 435.60'; thence Northerly and parallel to the center line of Park Avenue 360'; thence Westerly and parallel to the Northerly line of the Lenners land heretofore referred to, 435.60' to the center of Park Avenue; thence Southerly 360' along the center line of said Park Avenue to the place of beginning. EXCEPTING THEREFROM a strip of land 60 feet wide parallel to the southerly border thereof and extending 435.60 feet Easterly from the center line of Park Avenue to be used for street purposes at such time as there is a continuing street open to the East thereof. 14 FHDC-WOODBURN PURCHASE AGREEMENT 15 FHDC-WOODBURN PURCHASE AGREEMENT