HomeMy WebLinkAboutItem 18 South 59th Street Vacation AGENDA ITEM SUMMARY Meeting Date: 5/4/2015
Meeting Type: Regular Meeting
Staff Contact/Dept.: Andy Limbird, DPW Staff Phone No: x3784
Estimated Time: 15 minutes
S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Maintain and Improve Infrastructure and Facilities ITEM TITLE: SOUTH 59TH STREET VACATION
ACTION
REQUESTED:
Conduct a public hearing and first reading of the following ordinance:
AN ORDINANCE VACATING A PORTION OF SOUTH 59TH STREET NORTH OF MOUNTAINGATE DRIVE.
ISSUE
STATEMENT:
SunTrust Land Company LLC is requesting vacation of an undeveloped segment of South
59th Street that extends northward from Mountaingate Drive. The right-of-way vacation is requested to facilitate a consolidation of the vacation area with 10 undeveloped residential
lots.
ATTACHMENTS: 1. Staff Report
2. Site Maps 3. Vacation Application
4. Vacation Ordinance
5. Earnest Money Agreement between Springfield Utility Board and SunTrust Land Co.
DISCUSSION/ FINANCIAL
IMPACT:
The City, acting by and through the Springfield Utility Board (SUB), has entered into an
earnest money agreement with SunTrust Land Company for purchase of 10 vacant
residential lots that border an existing water reservoir facility at the north end of undeveloped South 59th Street (Attachment 5). SUB intends to consolidate the 10 residential lots and vacated right-of-way into a single parcel for future water system
improvements.
Staff advises that vacation of the right-of-way will have no adverse impact on public
utilities or services as there are no public improvements to the segment of South 59th Street requested for vacation. The right-of-way serves as a gated, unpaved access driveway to the
existing SUB Water reservoir tanks on the hillside. The right-of-way proposed for vacation
is intended to remain in public ownership under the terms of the earnest money agreement between SUB and SunTrust Land Company dated March 17, 2015. The applicant will be
providing a streetside public utility easement along Mountaingate Drive to accommodate existing underground utilities that cross beneath the intersection of South 59th Street and Mountaingate Drive.
Staff is recommending two conditions of the vacation for the provision of access and utility easements. These measures will ensure that the existing legal lots continue to be afforded
access to Mountaingate Drive until such time as the lots are replatted into a single consolidated parcel as planned by the applicant and connect existing street side public
utility easements.
In accordance with Section 3.204(1) of the Springfield Municipal Code, disposition of
public right-of-way requires that the applicant pay an assessment of special benefit for the
value of the vacation area that inures to the benefiting property. Staff advises that this vacation request does not qualify for an assessment of special benefit because the right-of-
way is undeveloped and will remain in public ownership upon vacation.
TYPE IV – VACATION OF PUBLIC RIGHT-OF-WAY
STAFF REPORT AND RECOMMENDATIONS
_____________________________________________________________________________________
File Name: South 59th Street Vacation
Applicant: SunTrust Land Company
Case Number: TYP415-00003 Proposal Location: Segment of South 59th Street north of
Mountaingate Drive
Adjacent Zoning: Low Density Residential (LDR)
Plan Designation:
Low Density Residential (LDR)
Applicable Comprehensive Plan: Metro Plan
Application Submittal Date: May 14, 2015
Associated Applications:
PRE15-00001 (Development Issues Meeting); PRE15-00024 (Development Issues Meeting for
Annexation); PRE15-00025 (Pre-Submittal for Major Replat)
CITY OF SPRINGFIELD’S DEVELOPMENT REVIEW COMMITTEE
POSITION REVIEW OF NAME PHONE
Project Manager Planning Andy Limbird 541-726-3784
Transportation Planning Engineer Transportation Michael Liebler 541-736-1034
Public Works Civil Engineer Streets and Utilities Clayton McEachern 541-736-1036
Deputy Fire Marshal Fire and Life Safety Gilbert Gordon 541-726-2293
Building Official Building David Bowlsby 541-736-1029
APPLICANT’S DEVELOPMENT REVIEW TEAM
POSITION NAME PHONE MAILING ADDRESS
Applicant SunTrust Land Company
LLC
541-728-0830 963 SW Simpson Avenue
Suite 110
Bend, OR 97402
Applicant’s
Representative
Lloyd Tolbert, PLS 541-359-8426 P.O. Box 22603
Eugene, OR 97402
Main Street
Right-of-Way Proposed for Vacation
SUB Water Reservoirs
S
5
7
th
St
r
e
e
t
Attachment 1, Page 1 of 6
Review Process (SDC 5.20-115): The subject vacation action is being reviewed under Type IV procedures, without Planning Commission consideration.
Vacation Initiation and Application Submittal (SDC 5.20-120): In accordance with SDC 5.20-120.A and ORS 271.080, vacation of public rights-of-way may be initiated by the petition of a property owner. A valid petition must have the signatures of all abutting property owners representing at least two-thirds (66%) of the abutting and
affected property.
Finding: The adjacent property owner, SunTrust Land Company LLC, represents 100% of the abutting property
ownership and has submitted a petition for vacation (Attachment 4 to the City Council AIS).
Conclusion: The application requirements in SDC 5.20-120.A have been met.
Site Information: The public right-of-way proposed for vacation is an undeveloped segment of South 59th Street
that extends north from Mountaingate Drive. The subject street right-of-way was created upon platting of the Mountaingate West subdivision in 2006 (Document 2006-080817, Lane County Deeds & Records). None of the residential lots served by the segment of South 59th Street, or the street itself, have been developed. Currently, the
right-of-way requested for vacation contains a gated, unpaved driveway from Mountaingate Drive to the existing SUB Water reservoir tanks on the nearby hillside.
The applicant is requesting vacation of the undeveloped segment of South 59th Street right-of-way to facilitate a consolidation of the vacation area with 10 adjacent, undeveloped residential lots. Under the terms of an earnest money agreement between the City of Springfield, acting by and through the Springfield Utility Board, and the
property owner (SunTrust Land Company), the vacation area would be consolidated with the 10 residential lots into a single parcel and transferred to SUB Water for future water system improvements. Consolidation of the
residential lots and vacation area would be done through a replat process.
There are existing underground public utilities that run along the north edge of Mountaingate Drive and therefore
pass across the South 59th Street right-of-way where it intersects Mountaingate Drive. A 10-foot wide streetside
public utility easement exists to the east and west of the South 59th Street intersection with Mountaingate Drive. To accommodate the existing utilities within the right-of-way requested for vacation, and to match the existing public
utility easements that border the vacation area, staff recommends concurrent recording of a 10-foot wide public utility easement over the southern 10 feet of the right-of-way requested for vacation.
Notice Requirements (SDC 5.20-125): Consistent with SDC 5.20-125, notice was provided as follows: Mailed Notice. Notice of the vacation request was mailed May 26, 2015, which is 20 days prior to the public
hearing date, to the affected property owner(s); owners and occupants of properties located within 400 feet of the perimeter of the affected territory; affected neighborhood groups or community organizations officially
recognized by the city that includes the affected territory; and affected special districts and all other public
utility providers.
Newspaper Notice. Notice of the June 15, 2015 public hearing was published in The Register-Guard on June
1 and 8, 2015.
Posted Notice. Notice of the June 15, 2015 public hearing was posted in four public places in the City: at the
southern end of the right-of-way proposed for vacation; at Springfield City Hall and in the Development & Public Works office; and on the City of Springfield website.
Conclusion: Notice of the public hearing was provided consistent with SDC 5.20-125.
Attachment 1, Page 2 of 6
Criteria (SDC 5.20-130): The application may be approved only if the City Council finds that the proposal conforms to the following criteria:
A. For the Vacation of public utility easements, the Director shall approve, approve with conditions, or deny
the application. The application will be approved if the Vacation is found to be consistent with the
following criteria:
1. There are no present or future services, facilities, or utilities deemed to be necessary by a utility
provider and the easement is not necessary; or
Staff Finding: The proposed vacation is not for a public utility easement. Therefore, this sub-element of
the criterion is not applicable.
2. If the utility provider deems the easement to be necessary, public services, facilities, or utilities can be
extended in an orderly and efficient manner in an alternate location.
Staff Finding: Access to the vacated right-of-way will be maintained for current utilities, including SUB
Water access to the existing reservoir tanks on the hillside. The access for underground utilities along the
north edge of Mountaingate Drive can be afforded through appropriate public easements and licenses for
the affected right-of-way (see Criterion B3 and Condition 1 below). Because the proposed vacation is for
public right-of-way and not for a public utility easement, this sub-element of the criterion is not applicable.
Conclusion: This proposal meets Criterion A.
B. Where the proposed Vacation of public rights-of-way, other City property, or Partition or Subdivision
Plats is reviewed under Type IV procedure, the City Council shall approve, approve with conditions, or
deny the Vacation application. The application will be approved if the Vacation is found to be consistent
with the following approval criteria.
1. The Vacation shall be in conformance with the Metro Plan, TransPlan, the Conceptual Local Street
Map and adopted Functional Plans, and applicable Refinement Plan diagram, Plan District map, or
Conceptual Development Plan;
Staff Finding: The subject right-of-way is not depicted on the City’s Conceptual Local Street Map and it is
currently undeveloped. It would be classified as an undeveloped local street. The street right-of-way was
dedicated with platting of the Mountaingate West subdivision in 2006 and was intended to be developed as
a short cul-de-sac for the nine residential lots with direct frontage on the street. However, neither the
subject segment of South 59th Street nor the adjoining residential lots were developed. Currently, the
segment of South 59th Street proposed for vacation contains a gated, unpaved access road for the SUB
Water facilities that are located past the north end of the right-of-way.
Staff Finding: The adopted Metro Plan does not specifically identify this segment of South 59th Street.
However, the subject right-of-way is depicted in the Mountaingate Master Plan, which was initially
adopted in 1995 and subsequently amended. The Mountaingate Master Plan has since expired, and the
segment of South 59th Street and adjoining residential lots are now proposed to be consolidated into a single
parcel for SUB Water facilities. The requested vacation does not change the underlying comprehensive
plan designation or zoning district boundary.
Attachment 1, Page 3 of 6
Staff Finding: There is no adopted Refinement Plan or Conceptual Development Plan for the subject
vacation area. Additionally, the Mountaingate Master Plan, which depicts the segment of South 59th Street
as a residential cul-de-sac, has expired. Therefore, the proposal meets this sub-element of the criterion.
2. The Vacation shall not conflict with the provisions of Springfield Municipal Code, 1997; and this
Code, including but not limited to, street connectivity standards and block lengths; and
Staff Finding: The proposed vacation will not have any effect on existing residential development as the
street is undeveloped and the lots accessed by the subject right-of-way are currently vacant. There is no
proposal to construct residential dwellings on the subject property upon vacation of the right-of-way and
consolidation of lots is anticipated by replat procedures. However, legal access must be provided to the
subdivision lots in the interim period between vacation and replatting pursuant to SDC 4.2-120.A.1.c.i. As
conditioned below, the proposal meets this sub-element of the criterion.
Recommended Condition of Approval:
1. Prior to or concurrent with recording of the Vacation Ordinance, a joint use access and utility easement connecting the existing lots to Mountaingate Drive shall be recorded for the right of way area to be vacated and evidence thereof provided to the City.
3. There shall be no negative effects on access, traffic circulation, emergency service protection or any
other benefit derived from the public right-of-way, publicly owned land or Partition or Subdivision
Plat.
Staff Finding: The applicant is proposing to vacate the right-of-way and consolidate the vacation area with
10 adjoining residential lots (Lots 120-129 inclusive, Mountaingate West, as platted and recorded
November 11, 2006, Document No. 2006-080817, Lane County Deeds & Records). Until the consolidation
is effected through a replat of the 10 lots and vacated right-of-way, the existing lots cannot become
landlocked and will need to maintain legal access to a public right-of-way. For this reason, staff
recommends that the Vacation Ordinance is not recorded until the subdivision replat is recorded.
Staff Finding: Because there are multiple known utilities within the southern edge of the right-of-way
proposed for vacation, provision will need to be made for maintenance, repair and replacement access to
existing equipment and utility lines. To accommodate utility infrastructure, a 10-foot wide public utility
easement will need to be recorded against the southern 10 feet of the subject right-of-way. As conditioned
below, the proposal meets this sub-element of the criterion.
Recommended Condition of Approval: 2. Prior to or concurrent with recording of the Vacation Ordinance, a 10-foot wide public utility
easement allowing for continued access, use, repair, replacement, and maintenance of utilities shall be recorded against the southwest edge of the vacation area and evidence thereof provided to the City. The easement shall connect the existing 10-foot wide public utility easements that
run along the north edge of the Mountaingate Drive right-of-way.
Conclusion: As conditioned herein, this proposal meets Criterion B.
C. Notwithstanding the provisions of Subsection B., above where the land affected by the proposed Vacation
of public right-of-way, other public land as specified in ORS 271.080, or public easement will remain in
public ownership and will continue to be used for a public purpose, the request shall be reviewed under
Attachment 1, Page 4 of 6
the Type IV procedure. The City Council may approve the Vacation application if it is found to be
consistent with the following criteria:
1. The Vacation was initiated by the City Council pursuant to ORS 271.130(1);
Staff Finding: The vacation action was initiated by an abutting property owner in accordance with
provisions of ORS 271.080 and SDC 5.20-120. Therefore, this sub-element of the criterion is not
applicable.
2. Notice has been given pursuant to ORS 271.110(1);
Staff Finding: Notice of the public hearing for vacation of the subject right-of-way has been provided in
accordance with ORS 271.110(1) and Section 5.20-125 of the City’s Development Code. Therefore, the
proposal meets this sub-element of the criterion.
3. Approval of the vacation would be consistent with provision of safe, convenient and reasonably direct
routes for cyclists, pedestrians and vehicles as provided in OAR 660-012-00045(3);
Staff Finding: The segment of right-of-way proposed for vacation is an undeveloped cul-de-sac that does
not currently provide for public access. As such, the right-of-way requested for vacation will not have any
adverse impact on the provision of safe, convenient and reasonably direct access for pedestrians, bicyclists
and vehicles. Therefore, the proposal meets this sub-element of the criterion.
4. Whether a greater public benefit would be obtained from the vacation than from retaining the right
of way in its present status; and
Staff Finding: The subject right-of-way is City-owned and is proposed to be retained in public ownership
as part of a consolidated parcel owned by SUB Water. Additionally, the right-of-way requested for
vacation is undeveloped and lacks any public improvements. As such, there is no negative impact to public
infrastructure or investment as a result of the proposed vacation.
Staff Finding: The subject right-of-way is proposed for consolidation with 10 adjacent vacant residential
lots to form a parcel for future SUB Water facilities. Therefore, the right-of-way proposed for vacation will
provide a greater public benefit as part of a public utility installation than in its current undeveloped state.
Staff Finding: In accordance with Section 3.204(1) of the City’s Municipal Code, the City Council may
require a payment to the city by the applicant of an amount equal to the assessment of special benefit
realized by the applicant as a result of the vacation. The subject vacation request is being made by the
property owner on behalf of the City, acting by and through the Springfield Utility Board, who has
executed an earnest money agreement for purchase of the consolidated parcel (Attachment 5 to the AIS).
Therefore, the subject right-of-way will remain in public ownership and the vacation action does not trigger
the requirement for an assessment of special benefit.
5. Whether provisions have been made to ensure that the vacated property will remain in public
ownership.
Staff Finding: Disposition of the right-of-way is predicated on provision of suitable easements and licenses for existing utilities within the vacation area (Condition 2). There is provision to retain the subject vacation
area in public ownership under the terms of an earnest money agreement executed between the Springfield
Attachment 1, Page 5 of 6
Utility Board and the applicant. In the event that the property transaction does not proceed, the vacation action would be null and void, and the segment of South 59th Street would continue to afford legal access to
the nine adjoining residential lots (Lots 120-128 of Mountaingate West).
Conclusion: This proposal meets Criterion C.
City Council Decision (SDC 5.20-135): City Council approval of the vacation application is done by adoption of
a Vacation Ordinance. In accordance with SDC 5.20-135, the City Council may attach conditions as may be reasonably necessary to allow the Vacation to be granted, including but not limited to provision of easements for
existing utilities.
Finding: On June 15, 2015, the City Council will conduct a Public Hearing and give first reading of the Vacation
Ordinance. Based on the staff analysis and recommendations, and on testimony provided at the Public Hearing, the
City Council may choose to adopt the Ordinance at a future meeting. The Council may order modifications to this Ordinance in consideration of evidence in the record. The Director recommends approval of the vacation
application subject to the conditions described in the staff report and as summarized below. SUMMARY OF STAFF RECOMMENDED CONDITIONS OF APPROVAL:
1. Prior to or concurrent with recording of the Vacation Ordinance, a joint use access and utility easement connecting the existing lots to Mountaingate Drive shall be recorded for the right of way area to be
vacated and evidence thereof provided to the City. 2. Prior to or concurrent with recording of the Vacation Ordinance, a 10-foot wide public utility easement
allowing for continued access, use, repair, replacement, and maintenance of utilities shall be recorded against the southwest edge of the vacation area and evidence thereof provided to the City. The easement shall connect the existing 10-foot wide public utility easements that run along the north edge of the
Mountaingate Drive right-of-way.
Attachment 1, Page 6 of 6
LOCATION OF PUBLIC RIGHT-OF-WAY PROPOSED FOR VACATION
SITE
Attachment 2, Page 1 of 2
PROPOSED VACATION OF PUBLIC STREET RIGHT-OF-WAY
PORTION OF SOUTH 59TH STREET NORTH OF MOUNTAINGATE DRIVE
RIGHT-OF-WAY
PROPOSED FOR
VACATION
Glacier Drive
SUB Water
Reservoir Tanks
S
5
7
t
h
S
t
r
e
e
t
Lot 120
Lot 121
Lot 122
Lot 123
Lot 124
Lot 125
Lot 126
Lot 127
Lot 128
Lot 129
S
5
6
t
h
S
t
r
e
e
t
Attachment 2, Page 2 of 2
Attachment 3, Page 1 of 6
Attachment 3, Page 2 of 6
Attachment 3, Page 3 of 6
Attachment 3, Page 4 of 6
Attachment 3, Page 5 of 6
Attachment 3, Page 6 of 6
At
t
a
c
h
m
e
n
t
4,
Pa
g
e
1
of
5
At
t
a
c
h
m
e
n
t
4,
Pa
g
e
2
of
5
At
t
a
c
h
m
e
n
t
4,
Pa
g
e
3
of
5
At
t
a
c
h
m
e
n
t
4,
Pa
g
e
4
of
5
At
t
a
c
h
m
e
n
t
4,
Pa
g
e
5
of
5
EARNEST MONEY AGREEMEOT
FOR PURCHASE OF PROPERTY
March 17,2015
Seller:Suntrust Land Company, LLC
963 SW Simpson, Suite 110
Bend,OR 97702
Telephone No: (541)728-0830
FacsimileNo; (541)728-0836
E-mailAddress:sholm@watsondevelopmentltd.com
Buyer:City ofSpringfield,actingby and through
Springfield UtilityBoard
250 "A"Street
P.O.Box 300
Springfield, OR 97477
Attention:JefFNelson,General Manager
Telephone No.:(541)746-8451
Facsimile No.: (541)746-0230
E-mail address:jeffh@subutil.com
With a copy ofanynotice to Buyer to:
Joseph J. Leahy Esq.
Leahy VanVactor, Cox &Melendy,LLP
188 West B Street,Bldg.N
Springfield, OR 97477
Telephone No.: (541)746-9621
FacsimUeNo.:(541)746-4109
E-Mail Address:jjl@emeraldlaw.com
AGREEMENTS
1 A.Purchase and Sale. Seller agrees to sell to Buyer and Buyer agrees to
purchase firom Seller the real property ("Property")in the county ofLane and State ofOregon and
described in Exhibit A. The Property is also known on the date ofthis agreement as consisting of10
lots known as Map Identification 18-02-03-22 Tax Lot Numbers 7700, 7800, 7900 and 8000 and
Map Identification 18-02-04-11 Tax Lot Numbers 8100, 8200, 8300, 8400, 8500, and 8600, and,
upon vacation,South 59**^Street ri^t of way within the lots (see Contingency 6(d)).See also
attached vicinity map.
Page 1 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 1 of 11
B. Effective Date. It is the intent of the parties to this Agreement that this
AgreementshaU beeffectiveonthe datethelastpartysignsthisAgreementf ^Effective Date").
2 Purchase Price and Payment.The total purchase price for the Property shall be
$375,000 (Three hundred seventy five thousand dollars)("PurchasePrice") andshallbepayable in
fullin cashupon Closing(ashereinafterdefinedin Section 11).
3 Earnest Money Deposit. Upon execution of this Earnest Money Agreement for
Purchase ofProperty ("Agreement"),Buyer shall deposit Twenty Thousand and no/100 Dollars
($20,000.00)as Earnest Money in escrow with Cascade Escrow (the "Escrow Agent"). Upon
satisfactionor waiver of the contingenciesset forth in Section 6. the Earnest Money shall become
nonrefundable but shall be applicableto the Purchase Price. Buyer shall have the right to cause
Escrow Agent to deposit the cash earnest money in a federally insured interest- bearing account
with theinterest to accrueforthebenefit ofBuyer.
4 Title Report,Title Commitments and Title Insurance.Seller shall direct
CascadeEscrow,811 Willamette Street, Eugene, Oregon1, Escrow Agent to deliver to Buyernot
laterthanfifteen (15)businessdaysafterthe EffectiveDate,a currentpreliminarytitle commitment
("Title Commitment")disclosing all matters of record. The Title Commitment shall be
accompanied by legible copies ofall instrumentsreferredto therein ("Exception Documents") or
an online access to such documents.The Title Commitment shall include a commitment fi:om
EscrowAgent to issue Buyerat Closingthe currentALTA StandardCoverageOwner'sPolicy of
TitleInsurance in the fiill amountofthe PurchasePrice("Title Policy"). Sellershall directEscrow
Agent to deliver to Buyer within fifteen (15) days followingClosing,the Title Policy, insuringtitle
to the Property in the name ofBuyer, in an amount equal to the Purchase Price, subject only to (a)
the usual conditionsand stipulations containedin the printedform of such current ALTA Standard
Coverage Owner's PolicyofTitleInsurance and(b)thePermitted Exceptions.
Buyer shaU havenot laterthanten (10) businessdaysafterreceipt ofthe Title Commitment
andthe ExceptionDocumentswithinwhichto give noticein writingto Sellerand EscrowAgent of
any objection to such matters of title affecting the Property.If Buyer fails to raise any such
objection withinsuchten (10)business dayperiod,then,exceptas set forthbelow, all conditions
and exceptions to title set forth in such Preliminary Commitment, shall be the "Permitted
Exceptions."
If an amended Title Commitment("Amended Title Commitment")is issued, then Buyer
shallhave not later than five (5) business days after receipt ofthe Amended Title Commitmentand
thenew ExceptionDocumentswithin which to give noticein writingto Sellerand EscrowAgent of
any objection to any matters of title affecting the Property that were not contained in the Title
Commitment.If Buyer fails to raise any such objection withinsuch five (5) business day period,
thenthose additionaltitle mattersshall alsobe PermittedExceptions.
If Buyer objects to an exception to title in the Title Commitment or the Amended Title
Commitment, Seller shall be obligated to notify Buyer within ten (10) business days after notice of
Page 2 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 2 of 11
such objection whether Seller is willing and able to remove such exception and a failure of Seller to
give such a notice shall be deemed a notice by Seller not to remove such exception. If Seller is
willing and able to remove such exception, Seller shall do so at or prior to Closing.If Seller is not
willing and able to remove the objected-lo exception, Buyer, by written notice to Seller within five
(5)business days after notice,or deemed notice,of Seller's unwillingness or inability to remove
such exception, may terminate tliis Agreement and receive a refund ofthe eamest money deposit as
set forth in Section 6(k) or Buyer may elect to acquire the Property subject to such exception. All
exceptions described in the Title Commitment and any Amended Title Commitment that are not
removed or are to be removed pursuant to this Section 4. and any obligation to pay deferred real
propertytaxes on the Property,shallbe PermittedExceptions.
Seller shall pay the premium for standard title insurance, and Buyer shall pay any added
premium for extended title insurance although Escrow Agent's willingness to issue extended title
coverage shall not be a condition of Closing. Seller shall also have the right to obtain a Seller's
Joint Protection Policy ofTitle Insurance at Closing, and Seller shall pay the premium therefor.
5 Reports,Studies.Within ten (10) business days of the Effective Date, Seller shall
exercise reasonable commercial efforts to deliver to Buyer the following items relating to the
Property that are in Seller's possession: topographical surveys, boundary surveys and all other
surveys; the property tax statements for the last real property tax year; all environmental reports and
studies including those relating to any wetland^,n^nitoring wells,all active licenses,permits,
approvals and entitlements issued, approved or granted by governmental authorities relating to the
Property and copies of any Leases and related rental records.
6 Title,Due Diligence and Contingencies.Buyer's obligation to close the sale and
purchase shall be subject to the satisfaction or waiver by Buyer ofall ofthe following conditions:
(a)Buyer's approval of title, as set fortli in Section 4, within the time period set
forth therein ('Title Contingency Period").
(b)Buyer's approval of the physical and documentary aspects ofthe Property.
Buyer shall have a period of sixty (60) days following the Effective Date ("Due Diligence
Contingency Period")witliin which to satisfy itself as to the physical and documentary
aspects of the Property, including but not limited to structural conditions, impact of and
legal status of, soil conditions, the absence ofhazardous and toxic materials, the availability
ofutilities, streets, access, zoning and applicable City and County ordinances, the economic
feasibility ofthe contemplated purchase, and other government approvals that may affect the
Property and its intended use by Buyer.
(c)Seller's consolidation in accordance with City of Springfield Development
Code requirements ofthe 10existing lots into one contiguous lot.
(d)Seller to Vacate in accordance with City of Springfield requirements South
59^Street within the property boundaries.
Page 3 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 3 of 11
(e) Seller to vacate all public and private easements within the property
boundaries except as follows:
(i) Easements that the City of Springfield determines must be
maintained.
(ii) ExistingprivateeasementsthatBuyersagreemayberetained.
(iii) Existingpublic easements that firont MountainGate Drive.
(iv) A 15' X15'landsc^e easementon MountainGate WestPlatpage 16
as platted and recorded November 8, 2006, Reception No. 2006-
080817, Lane County Deeds and Records.
(f) Seller to secure withdrawal of the real property from the terms and
conditions of the MountainGate Homeowners'Association Covenants, Conditions and
Restrictions.
(g) Sellershallhave 175daysto completeitems(c),(d),(e)and (f).
(h) Sellershallprovideanaccesseasementfor SUBthroughthe properties to the
reservoir site generally alongthe existing route and marked bythe orientation ofthe platted
street that will be vacated. This shall be designated as an easement to SUB or other
instrumentforaccessapprovedby SUB.
(i) Buyers understanding that propertyis suitable for processingand obtainii^
landuseand development approval fromthe Cityof Springfield (orLaneCountyasmaybe
applicable) to allow constructionof utility facilitieson the site.
G) Buyer's satisfactoryreview and acceptanceofa Level 1andat thediscretion
of Buyera Level 2 Environmental Assessment Report to be commissioned and paidforby
Buyer.
(k) TheTitleContingency PeriodandtheDue Diligence Contingency Period are
sometimes hereinafter collectively referred to as the "Contingency Periods."If the
foregoing conditions arenottimely satisfied or waived withinthe applicable Contingency
Periods,BuyershallgiveSellerwrittennoticethereof.If Buyerfailsto givetimely written
noticeto Seller of any objection to any of the foregoing conditions,then Buyer shall be
deemedto be satisfiedwifti,or to have waived,such conditions.If Buyer does providea
timelynotice ofobjection,then this Agreementshallterminateand Buyer's earnestmoney
shall be returned to Buyer. Upon such termination.Buyer shall deliver to Seller all
documents that Seller has delivered to Buyer in cormection with Buyer's due diligence.
Uponthe deliveryofsuchdocumentsandthe returnofthe earnestmoneyneitherpartyshall
have any fiirther rights or liabilities hereunder except as expressly set forth herein.If the
foregoing conditions aretimelysatisfied or waived,thentheparties shall proceedto Closing
as hereinafter set forth.
Page 4 -EARNEST MONEY AGREEMENT FORPURCHASE OF PROPERTY
Attachment 5, Page 4 of 11
tliat:
(1)Except asmay be required by the Oregon Public Records Law ORS 192.410
et seq, Buyer will use and disclose information it obtains about the Property solely in
connection willi its purchase evaluation. Unless and until it acquires the Property, Buyer
will not disclose any such information to any third party except (a) its officers and
employees; (b) its property consultants and lawyers; (c) the City ofSpringfield (and/orLane
County as applicable) asmay be necessary to obtain land use and development approval;(d)
to any court of competent jurisdiction in connection with any mediation, arbitration, or
litigation in connection with this Agreement; and (e) as to any information that is otherwise
a matter ofpublic record.
7 Seller Representations and Warranties.Seller represents and warrantsto Buyer
(a) Seller is not a foreign person within the meaning of Section 1445 of the
Internal Revenue Code of 1986 ("Code"), and at Closing, Seller shall deliver a certification
to this effect to Buyer. Escrow Agent is instructed to prepare a certification that Selleris not
a foreign person within the meaning of Section 1445 of the Code and its implementing
regulations and Seller agrees to execute and deliver the same to Buyer at Closing.
(b) Seller has the legal power, right and authority to enter into this Agreement
and to consummate the transactions contemplated herein. The individual executing this
Agreement on behalfof Seller has the legal power, right and actual authority to bind Seller
to the terms and conditions ofthis Agreement.
(c) To the best of Seller's information and belief, Seller is not aware of any
hazardous waste, toxic substances or other environmental presence on the Property.
The foregoing representations and warranties shall be true and correct at Closing, and they shall
survivethe Closing. Except as set forth above,Seller disclaims the making ofany representations
or warranties,express or implied,regarding the Property or matters affecting ^e Property,
mcluding,without limitation, the physical condition ofthe Property, title to or boundaries ofthe
Property,pest control matters, soil condition,hazardous waste, toxic substances or other
environmental matters, compliance with building, health, safety, land use and zoning laws,
regulations and orders, structural and other engineering characteristics, traffic patterns, and all
other information pertaining to the Property. Buyer, moreover, acknowledges (i) that Seller did
not develop the Property, (ii) that Buyer is a sophisticated investor, knowledgeable and
experienced in the financial and business risks attendant to an investment in real property and
capable of evaluating the merits and risks of entering into this Agreement and purchasing the
Property, (iii) that Buyer has entered into this Agreement with the intention of making and
relying upon its own (or its experts') investigation of the physical, environmental, economic and
legal condition of the Property, including, without limitation, the compliance of the Property
with laws and governmental regulations, and (iv)that Buyer is not relying upon any
representations and warranties made by Seller or anyone acting or claiming to act on Seller's
Page 5 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 5 of 11
behalf concerning the Property. Buyer further acknowledges that it has not received from Seller
any accounting, tax, legal, architectural, engineering, property management or other advice with
respect to this transaction and is relying upon the advice of its own accounting, tax, legal,
architectural,engineering,property management and other advisors.
8 Buyer Representations and Warranties:Buyer represents and warrants to Seller
that Buyer has the legalpower, right and authorityto enterinto this Agreement and to consummate
the transactions contemplated herein. The individual executing this Agreement on behalfofBuyer
has the legal power, right and actual authority to bind Buyer to the terms and conditions of this
Agreement.
9 Right of Entry,Buyer and its authorized agents, employees and independent
contractors are hereby granted the right to enter upon the Property at reasonable times for the
purpose ofmaking or conducting any inspection, investigation, test or survey reasonably related to
the purchase of the Property or the satisfaction ofBuyer's Contingencies hereunder as set forth in
Section 6, subject to the following:
(a)IfBuyer does not purchase the Property,then any damage to the Property
shall be promptly repaired and the Property restoredto the same state as existed prior to
such entry.
(b) Buyer shall keep the Property free from liens in connection with any such
entry. Any environmental testing shall be done with licensed, bonded and insured
companies and copies ofall test resultsand reportsshall be promptly provided to Seller. All
invasive testing shall be subject to a written work plan that Seller shall have the right to
approvein advance ofthework being performed,which approvalshall not be unreasonably
withheld.
(c) Buyershall indemnify,defendandhold Sellerharmless ofand fromanyand
all claims,demands,actionsand liabilitiesthatmayarise or result from Buyer's activitieson
the Property in connection with anysuch entry.
10 Operating Pending Closing. Between the Effective Date and Closing, Seller
agrees (a) not to market the Land for sale or lease to any other party or accept any back-up offer
contingent upon this transaction not closing, (b) not to finther encumber the Land; (c) to maintain
all of Seller's fire, casualty and liabilityinsurancein fuU force and effect, (d) except as otherwise
providedinthis Agreement,not to changeor acquiescetoany changein the zoningofthe Landand
(e)to keep allobligationssecuredby thePropertycurrent.
11 Closing,Escrow,Prorates.Ifthe conditionsset forthin Section6 have beentimely
satisfied or waived, the purchase and sale shall close on the date designated by Buyer in a written
notice to Seller, but in all events, closing shalltake place at Cascade Escrow, 811 Willamette Street,
Eugene, Oregon, Escrow Agent on or before thirty (30) daysfollowing the satisfactionor waiver of
said conditions in any event ("Closing"and the date thereofthe "Closing Date").The purchase of
the Property shall be closed in escrow by the Escrow Agent. Prior to Closing, each party will
Page 6- EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 6 of 11
deposit with the Escrow Agent the funds, documents and instructions necessary for Closing. The
cost ofthe escrow shall he shared equallyby Seller and Buyer. Seller shall pay all recordingcosts
to release any existing financing fi-om the title to the Land and Buyer shall pay all other recording
costs. Real property taxes shall be prorated based on the closing date.
12 Special Statutory Warranty Deed. Upon Closing, the Land shall be conveyed to
Buyer by special statutory warranty deed ("Deed"),free of encumbrances created or suffered by
Sellerexceptfor thePermittedExceptions.
13 Broker.The parties represent and warrant to one another that there are no real
estate brokers or salespersons involved in thistransaction.
14 Other Closing Matters.Each party's obligation to close is subject to performance
by the other party ofall ofthe other party's obligationspursuant tothis Agreement and the accuracy
ofthe other party's representations and warranties at Closing. Buyer shall be entitled to possession
ofthe Propertyat Closing.
15 Default by Seller.If this purchase and sale does not close by reason ofthe default
of Seller, Buyer shall be entitled to the return of the earnest money deposit, together with any
interest accrued thereon, notwithstanding the provisions of this Agreement stating the same to be
nonrefundable. Buyer waives the right to pursue a claim for damages. Buyer may pursue a claim
for specific performance.To pursue a claim for specific performance,the action must be filed and
served within ninety (90) days following the date of Seller's default and if not timely filed and
served, Buyer shall be limited to the return ofthe earnest money deposit, together with any interest
accrued thereon.
16 Default by Buyer.Ifthis purchase and sale does not close by reason of any default
ofBuyer, Buyer and Seller agree that it would be impractical and extremely difficult to estimate the
damages that seller may suffer. Therefore, Buyer and Seller do hereby agree that a reasonable
estimate ofthe total net detriment that Seller would suffer ifBuyer defaults and fails to completethe
purchase ofthe property is and shall be, as Seller's sole and exclusive remedy (whether at law or in
equity), an amount equal to the earnest money deposit held by the escrow agent. Said amoimtshall
be the full, agreed and liquidated damages for the breach of this agreement by Buyer,aU other
claims to damages or other remedies being herein expressly waived by Seller. Upon default by
Buyer, this agreement shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the right of Seller to collect such liquidated
damages from buyer and the escrow agent.
17 General and Miscellaneous Provisions.
(a)Assignment.Buyer may not assign this Agreement or any of its interest
herein or in the Property without first obtaining the written consent ofSeller.
Page 7 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 7 of 11
(b)Prior Agreements.This Agreement is the entire, final and complete
agreementof the partiespertainingto the sale andpurchase of the Propertyand supersedes
andreplaces all writtenand oral agreementsheretoforemade or existingby and betweenthe
parties or their representativesinsofar as the Property is concemed. Neither party shall be
bound by any promises,representations or agreementsexcept as are herein expressly set
forth.
(c)Time is of the Essence. Time is expressly made of the essence of each
provision ofthis Agreement
(d) Notices. Any notice requiredor permittedunder this Agreementshallbe in
writingandshallbe givenas follows:
(i) notice may be given by certified mail, retum receipt requested,
addressedto the addressee at the address set forth below the name ofthe party on the
firstpage ofthis Agreementor at such other address as one partymay indicateby
written notice to the other party, and shall be effective forty-eight (48) hours after
having been deposited in the United States mail;
(ii) noticemaybegivenby personal delivery andshallbe effective upon
the date ofdelivery;
(iii) notice may be given by facsimile transmission to the facsimile
numberset forthbelow the name ofthe partyon the first page ofthis Agreementor
at such other facsimile number as one party may indicate by written notice to the
other party and shall be effective upon the date ofsuccessful transmission, provided
that the sender's facsimile machine provides evidence ofa successful transmission
and provided furtherthat a duplicatecopyof the noticeis sent on the sameday by
firstclassmail,addressed tothe addressee atthe address setforthonthe first pageof
this Agreementor at such otheraddressas oneparty may indicate by writtennotice
to the other party; and
(iv) notice may be given by email transmission to the email address set
forthonthe firstpage ofthisAgreementor at suchotheremailaddressasoneparty
may indicate by written notice to the other party and shall be effective if and when
the addressee acknowledges by retum email that the addressee has received the
emailed notice.
(e)Attorney Fees and Costs.If any controversy or claim arises under this
Agreement, the prevailing party shall be entitled to its reasonable costs, disbursements and
attomey fees, together with all expenses that it may reasonably incur in taking such action,
including, but not limited to, costs incurred in searching records, expert witness and
consulting fees, discovery depositions, whether or not introduced into evidence in the trial,
hearing or other proceeding, including an arbitrationproceeding, and travel expenses in any
Page 8 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 8 of 11
arbitration, trial or other proceeding, including any proceeding brought to enforce an award
to judgment and any and all appeals taken therefrom.
® Nonwaiver. Failure by either party at any time to require performanceby
the other party of any of the provisions hereof shall in no way affect the party's rights
hereunder to enforce the same nor shall any waiverby the party of the breach hereof be held
to be a waiver ofany succeeding breachor a waiver ofthisnonwaiverclause.
(g) No Merger.The obligations set forth in this Agreement shall not merge
with the transfer or conveyance oftitleto any party ofthe Property but shall remain in effect
until fulfilled.
(h)Amendments.This Agreement may be amended, modified or extended
without new consideration but onlyby written instrument executed by both parties.
(i)Governing Law. This Agreement shall be construed in accordance with and
governed by the laws ofthe state ofOregon.
(j)Severabiiity.If any portion of this Agreement shall be invalid ox
unenforceable to any extent, the validity of the remaining provisions shall not be affected
thereby.
(k)Counting of Days. Whenever a time period is set forth in days in this
Agreement,the first day from which the designated period oftime begins to run shall not be
included. The last day ofthe period so computed shall be included, unlessit is a Saturday or
legal holiday, including Sunday,in which event the period runs untilthe end ofthe next day
which is not a Saturday or legalholiday.
(1)Number,Gender and Captions.In constming this Agreement, it is
understood that if the context so requires, the singular pronoun shall be taken to mean and
include the plural, the masculine, the feminine and the neuter, and that generally all
grammatical changes shall be made, assumed and implied to individuals and/or corporations
and partnerships. All captions and section headings used herein are intended solely for
convenience ofreference and shall in no way limit any ofthe provisions ofthis Agreement.
(m)Binding Effect. The covenants, conditions and terms of this Agreement
shall extend to and be binding upon and inure to the benefit of the heirs, personal
representatives, successors and assigns of the parties hereto, and any provisions of this
Agreement that are not intended or contemplated to be performed prior to Closing shall
survive the Closing.
(n)Exchange.Upon request by Seller, Buyer will cooperate and participate in a
tax deferred exchange (simultaneous or delayed under Section 1031 of the Intemal Revenue
Code), with respect to this transaction, and execute such documents as may be reasonably
Page 9 -EARNEST MONEY AGREEMENT FOR PXmCHASE OF PROPERTY
Attachment 5, Page 9 of 11
necessaryto effect such exchange;provided: (i) Buyer is not requiredto take title to any
exchange property, (ii) Buyer is not required to incur any additional liability or
unreimbursed expense (exclusive of attorney fees) in connection with participating in such
an exchange,and (iii)anysuch participationdoes not delayor otherwiseadverselyaffectthe
obligationsofSellerpursuantto this Agreement
(o)Execution in Counterparts.This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts, each of
which counterparts,when so executed and delivered, shall be deemed to be an originaland
all ofwhich counterparts,takentogether,sh^l constitutebutoneandthesame Agreement.
18 Zoning and Land Use, 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,CHAPTER8,OREGON LAWS 2010.
BUYER:SELLER:
CITY OF SPRINGFIELD, ACTING BY AND SUNTRUST LAND COMPANY, LLC, an
THROUGH SPRINGFIELDUTILITY Oregonlimited liabilitycompany
BOARD
Name:kh ~Name
Title:Title:
Date:5 //V ^Date:yn /i T"
N:\SUB\RPGtfASauthS7thLotPinthijoKEiniestMoneyAgreemem ibrPurchaseorPn>p«iiy.daex
Page 10-EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 10 of 11
^^
EXBCDBIT A
Lots 120,121,122,123,124,125,126,127,128,and 129.
MOUNTAINGATE WEST as platted and recordedNovember 9,2006,Reception No. 2006-
080817 Lane County Deeds and Records inLane County, Oregon.
Page 11 -EARNEST MONEY AGREEMENT FOR PURCHASE OF PROPERTY
Attachment 5, Page 11 of 11