HomeMy WebLinkAboutItem 09 Purchase and Sale Agreement for 753 Centennial Boulevard AGENDA ITEM SUMMARY Meeting Date: 1/19/2016
Meeting Type: Regular Meeting
Staff Contact/Dept.: Ken Vogeney/DPW Staff Phone No: 541-736-1026
Estimated Time: Consent
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: PURCHASE AND SALE AGREEMENT FOR 753 CENTENNIAL
BOULEVARD
ACTION REQUESTED: Accept or reject the following motion:
Authorizes the City Manager to execute a Purchase and Sale Agreement with PCLT
Development, LLC, for property commonly known as 753 Centennial Boulevard, including any additional modifications to the terms of the Agreement that do not
affect the purchase price and as approved by the City Attorney and City Manager.
ISSUE STATEMENT: The property at 753 Centennial Boulevard is currently for sale. The property is significantly encumbered with existing easements and setbacks that will make the
property difficult to develop. Staff recommends that the City purchase the property
for $12,000 to protect existing infrastructure and to facilitate future realignment of 8th Street at Centennial Boulevard.
ATTACHMENTS: 1. Draft Purchase and Sale Agreement
2. Photo and Diagram of Property
DISCUSSION/ FINANCIAL IMPACT:
The property at 753 Centennial Boulevard was previously occupied by a single-family dwelling that burned down. The remainder of the structure was demolished in 2015. PCLT Development, LLC purchased the property and marketed it for sale.
Several potential purchasers contacted staff to ask about any restrictions for redeveloping the property. Upon investigation, staff found that the former dwelling
did not meet several required setback requirements and that if a new dwelling were
to be constructed it would be significantly smaller than the previous structure. Further, a 7-foot wide segment of the City’s Over-Under Channel pipe diagonally
crosses the southwesterly portion of the property, with the pipe being within an
easement of undefined width recorded in 1948. Given the size and depth of the pipe, staff recommended that a 20-foot wide setback be maintained along the
easterly edge of the pipe to protect it from damage from a new dwelling and to facilitate the pipe’s maintenance and future replacement. While the property contains 6,335 square feet, the current setbacks result in the potential area of the
property for development being reduced to a triangular area of 1,450 square feet as shown on Attachment 2. Staff hired Charles P. Thompson & Assoc., Inc. to appraise the property and they established a value of $12,000.
Staff has contacted PCLT Development and they are willing to sell the property to
the City for the appraised value, thereby allowing the City to use the property for
the Over-Under Channel and for the potential future realignment of 8th Street when this street is improved to urban standards south of Centennial Boulevard. Staff is
continuing to work with PCLT Development to finalize the terms of the Purchase
and Sale Agreement and requests Council’s approval of the Agreement subject to any final modifications of the terms as approved by the City Attorney and City
Manager. Staff proposes to use funds budgeted in Fund 425 (Storm Drainage
Capital) in Account 850093 (Riparian Land Management and Acquisition) to pay for the purchase of this property.
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is entered into on January _____, 2016, by
and between PCLT Development, LLC (“Seller”), and City of Springfield, a municipal corporation of the State of Oregon (“Purchaser”).
RECITALS
A. Seller owns certain real property commonly known as the “Property,” located at
753 Centennial Blvd., Springfield, Lane County, Oregon, as more particularly described in
Section 1 below (collectively, the “Property”).
B. Purchaser desires to acquire all the Property from Seller, and Seller is willing to
sell and convey all the Property to Purchaser, on and subject to the terms of this agreement
(“Agreement”).
AGREEMENT
1. Purchase and Sale of the Property. Seller agrees to sell the Property to Purchaser,
and Purchaser agrees to purchase the Property from Seller, on the terms and conditions set
forth in this Agreement. The Property consists of:
(a) The land described as follows and all easements, rights, strips, gores, rights-of-
way, and any other rights or interests appurtenant thereto:
Beginning at a point on the South line of Lot 12 of Replat of Lots 17, 18 and 19
of CLARK AND WASHBURNE’S ADDITION TO SPRINGFIELD, as platted and
recorded in Book 3, Page 14, Lane County Oregon Plat Records, 280 feet East of
the Southwest corner of said Lot 12; thence North 90.5 feet; thence East 70
feet; thence South 90.5 feet; thence West along the South line of said Lot 12, 70
feet to the Place of Beginning, in Lane County, Oregon.
(b) All the improvements currently situated on the Land (the “Improvements”); and
(c) All Seller’s rights (if any) in all tangible personal property located on the Land or
in the Improvements.
2. Purchase Price. The total purchase price for the Property is Twelve Thousand Dollars
($12,000.000).
3. Earnest Money Deposit. (DELETED) 4. Payment of Purchase Price. The purchase price must be paid by Purchaser in all
cash on the Closing Date (as defined in Section 11.1) subject to the adjustments and credits as provided in this Agreement.
5. Inspection Contingency 5.1 Inspection Rights. Seller shall provide to Purchaser copies of all tests,
inspections, environmental assessments, and other written information regarding the property
in Seller’s possession. Purchaser will have until midnight at the end of the tenth (10) day after
the Effective Date (the “Review Period”) to satisfy itself concerning all aspects of the Property,
Attachment 1, Page 1 of 11
including, without limitation, the physical condition thereof; the insurance policies, contracts, leases, and all other financial aspects of the Property; the availability of any governmental
permits and approvals; and the feasibility of using the Property for Purchaser’s intended use.
Purchaser will have the right to perform such tests, inspections, and feasibility studies on the Property as Purchaser may deem necessary. Seller will permit and, to the extent reasonably
required by Purchaser, will assist Purchaser in providing access to Seller’s architects, engineers,
contractors, subcontractors, managers, analysts, and appraisers in connection with Purchaser’s
review of the Property.
5.2 Inspection Expenses. All costs and expenses of all Purchaser’s tests, inspections,
and studies must be paid by Purchaser when due, regardless of whether this transaction closes.
5.3 Removal of Inspection Contingencies. If, by the end of the Review Period,
Purchaser has notified Seller in writing that Purchaser rejects the Property in its then-current
condition, this Agreement will terminate, whereupon the Deposit will be refunded to Purchaser
within five (5) days. This Agreement thereafter will be null and void, and neither party will have
any obligation to the other, except as otherwise provided herein. Unless such notice of rejection
is given, the inspection contingency will be deemed waived and this Agreement will be binding
on Purchaser. If Purchaser elects, Purchaser may offer Seller the opportunity to correct any
items Purchaser determines to be unacceptable by providing Seller with written notice before
the end of the Review Period of what must be corrected, by what dates, and in what manner
(the “Correction Notice”). Within Three (3) days after Seller is given the Correction Notice,
Seller will notify Purchaser in writing whether and to what extent Seller will effect and pay for
the corrections (the “Notice of Intent to Correct”), all of which must be completed before the
Closing Date (defined in Section 11.1). If Seller fails to give a Notice of Intent to Correct within
those Three (3) days, Seller will be deemed to have refused to agree to the corrections. Within
Three (3) days after Seller gives a Notice of Intent to Correct (or after the last day of the period
within which the notice is to be given if it is not), Purchaser may elect to (a) cancel this
Agreement, whereupon the Deposit will be immediately refunded to Purchaser, or (b) agree to
waive its inspection contingencies as provided in this section, whereupon Seller will promptly
commence and proceed with diligence to completion before the Closing Date with the
correction of the items that Seller agreed to undertake in its Notice of Intent to Correct. The
failure of Purchaser to give notice of its waiver to Seller within the Three (3)-day period will be
deemed an election to waive its inspection contingencies in this section. 5.4 Environmental Assessments. Purchaser is responsible for obtaining its own
environmental inspections of the Land and Improvements. Purchaser agrees to provide Seller
with a true and complete copy of all environmental studies, tests, and reports that Purchaser
obtains in connection with its inspection of the Land or Improvements and, if authorized by
Seller as provided in Section 5.1, with independent splits of each soil or groundwater sample or
other substance or material that may be obtained by Purchaser or its consultant in form and
quantity sufficient for independent analysis. Purchaser will pay for all costs of its environmental
inspections regardless of whether this sale closes. If any person is required to make any report
to any governmental agency as the result of any environmental inspection, the report will be
submitted solely by Seller.
5.5 Confidentiality Requirements. Purchaser will use and disclose information it
obtains about the Property solely in connection with its purchase evaluation. Unless and until it
acquires the Property, Purchaser will not disclose any such information to any third party except
(a) as and to the extent required by its purchase-money lender; (b) to its members,
shareholders, partners, permitted assignees, successors, property consultants, and lawyers; (c)
to any court of competent jurisdiction in connection with any mediation, arbitration, or litigation
Attachment 1, Page 2 of 11
in connection with this Agreement; and (d) as to any information that is otherwise a matter of public record.
6. Title to the Property 6.1 Title Report. A Title Report to the property dated December 23, 2015, Order No.
15-12081 is attached to this Agreement. Purchaser will have until Seven (7) days after
execution of this Agreement in which to notify Seller in writing of Purchaser’s disapproval of any
exceptions shown in the Title Report. Any special assessments shown on the Title Report that
are objected to by Purchaser will be included in Purchaser’s notice. In the event of any
disapproval, Seller will notify Purchaser in writing within Three (3) days after Purchaser’s
notification as to whether Seller agrees to remove any of the exceptions so disapproved, and
upon delivering the notice, Seller will have until the Closing Date described in Section 12.1 to
cause the exceptions that Seller has agreed to remove to be removed of record and from the
Title Report. Purchaser will be deemed to have accepted all title exceptions to which it has not
timely objected.
6.2 Rescission of Agreement—Title Defects. If Seller elects not to eliminate any title
exception disapproved by Purchaser, Purchaser may elect to cancel this Agreement by written
notice to Seller given on or before Five (5) days after Seller’s notification of the election. In this
event, the Deposit will be refunded to Purchaser and this Agreement will terminate. If
Purchaser does not elect to cancel this Agreement, Purchaser’s objections to the disapproved
exceptions that Seller elected not to eliminate are deemed waived and the Property will be
conveyed to the Purchaser with such defects without credit against the purchase price. The
foregoing notwithstanding, Seller agrees that it will cause all trust deed liens against the
Property that are not accepted by Purchaser to be released of record by the Closing Date. If
Purchaser fails to give timely notice to Seller of termination under this paragraph, then
Purchaser’s right of termination will be deemed waived.
7. Property Documentation
7.1 Copies of Leases, Contracts, Other Information. As soon as practicable, Seller will
deliver to Purchaser or provide Purchaser access to all the documents and reports regarding the
property which are in Seller’s possession or control. Except as otherwise specifically provided in
this Agreement, Seller is under no obligation to create any additional data or documentation or
obtain any reports for Purchaser.
7.2 Information Provided by Third Parties. Purchaser acknowledges that Seller is not
making any representation, warranty, or guaranty with respect to the completeness, accuracy,
or reliability of any report, document, or record prepared by any third party regarding the
Property [other than that Seller represents it has no actual knowledge of any inaccuracies in
such third-party information except as disclosed in writing to Purchaser].
8. Seller’s Representations
8.1 Content of Representations. Seller represents, warrants, and covenants to
Purchaser as follows:
(a) No Notice of Violation of Zoning and Other Laws. Seller has not received any
written notice from any governmental authority alleging that the Improvements violate any
building codes, building or use restrictions, or zoning ordinances, rules, or regulations.
(b) No Litigation. To Seller’s knowledge, there is no pending or threatened litigation
or administrative action with respect to the Property, except for any actions for possession,
Attachment 1, Page 3 of 11
damages, or rent against tenants who are in default under their Leases as described in the Rent Roll.
(c) No Condemnation. To Seller’s knowledge, there is no pending or contemplated
eminent domain, condemnation, or other governmental taking of the Property or any portion thereof.
(d) No Additional Assessments. To Seller’s knowledge, there are no extraordinary
governmental assessments or impositions levied against, applicable to, or proposed for the
Property as distinct from ordinary ad valorem property taxes, which will be disclosed in the Title
Report.
(e) No Government Obligations. To Seller’s knowledge, there are no unperformed
obligations that are currently due relative to the Property to any governmental or quasi-
governmental body or authority.
(f) No Seller Contamination. To Seller’s knowledge, Seller has not caused any
hazardous substance, waste, or material to be used, generated, stored, or disposed of on or
transported to or from the Land or Improvements in violation of any applicable law before or
during the period in which the Seller has owned the Property. For the purposes of this
paragraph, “hazardous substance, waste, or material” means all petroleum-based products,
radon, asbestos, PCBs, and all substances, wastes, and materials that are so defined in the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC §§9601–
9675; the Resource Conservation and Recovery Act, 42 USC §§6901–6992k; and the Hazardous
Materials Transportation Act, 49 USC §§5101–5128.
(g) Authority of Seller. Seller’s execution of, delivery of, and performance under this
Agreement are undertaken according to authority validly and duly conferred on Seller and the
signatories hereto.
(h) No Breach of Agreements. This Agreement and the consummation of the
transaction evidenced by this Agreement do not violate any other agreement to which Seller is
a party.
(i) Nonforeign Status. Seller is not a “foreign person” as defined in IRC §1445(f)(3),
and Seller is not a “transferor” as defined in ORS 314.258(2)(b).
8.2 Seller’s Knowledge. In each event in which any representation of Seller is limited
“to Seller’s knowledge” or similar phrase, that knowledge must include only the actual, personal
knowledge (and not the implied, imputed, or constructive knowledge) of Seller, without any
investigation or inquiry whatsoever, except that said knowledge includes a general review of
Seller’s files.
8.3 Effect of Purchaser’s Knowledge. Purchaser agrees that in the absence of an
intent on the part of Seller to fraudulently conceal information about the Property or
fraudulently mislead Purchaser, Purchaser will not have the right to rely on any warranty or
representation of Seller, and Seller will not be liable for any breach of any such warranty or
misrepresentation, if and to the extent Purchaser is given access to data or information relating
to the Property before the Closing Date that reveals, or Purchaser’s tests or inspections before
the Closing Date reveal, or Purchaser otherwise knows or has reason to know before the
Closing Date of any information that reveals the warranty or representation to be incorrect, and
in any of such events Purchaser nevertheless elects to close this purchase.
8.4 Survival of Warranties. All Seller’s warranties in this Agreement are deemed
given only as of the date of this Agreement. Seller’s liability for any misrepresentation or the
breach of any warranty under this Agreement will survive the closing of this transaction, but
any claim for any misrepresentation or breach of any covenant will be deemed to have been
waived unless Purchaser files and serves a complaint for damages or other remedies based on
Attachment 1, Page 4 of 11
the alleged misrepresentation or breach within 24 months after the Closing Date or, if this transaction fails to close, within 6 months after the date this Agreement is canceled or
terminates.
9. Purchaser’s Representations
Purchaser represents, warrants, and covenants to Seller as follows:
9.1 Purchaser’s Existence and Authority. Purchaser is a validly existing and duly
organized municipality under the laws of the State of Oregon and has the full right and
authority to conduct its business under the laws of the State of Oregon.
9.2 No Third-Party Consents. The execution of this Agreement by Purchaser and
Purchaser’s performance of all its obligations hereunder are not subject to any approval or
consent of any person, board, committee, or third party.
9.3 No Litigation. Purchaser is not a party to any litigation or civil or criminal
proceedings; no petitions in bankruptcy have been filed by or against Purchaser; and none of
Purchaser’s assets are currently subject to any insolvency, receivership, or foreclosure
proceedings.
9.4 No Breach of Agreements. This Agreement does not breach or violate any term
or provision of any other agreement or contract to which Purchaser is a party.
10. Conditions to Closing
10.1 Purchaser’s Conditions. Purchaser acknowledges that Seller does not guarantee
the satisfaction of the conditions precedent listed in this Section 10.1 and that Seller’s failure to
satisfy the conditions (for any reason other than Seller’s bad faith) will not be deemed to be a
default hereunder but will merely be a failure of a condition to closing, in which event
Purchaser’s sole remedy will be to (1) waive the condition(s) and any claim against Seller with
respect thereto, including, without limitation, as provided in Section 8.3, or (2) terminate this Agreement and receive a refund of the earnest money deposit. Furthermore, at Seller’s election,
Seller will be permitted to extend the Closing Date for any period of time up to thirty (30) days
to satisfy any of the conditions set forth in this Section 10.1. Purchaser’s obligation to close this transaction is subject to the satisfaction of each of the following conditions:
(a) Seller’s Compliance. Seller’s fulfillment of each of its obligations under this
Agreement in all material respects. (b) Seller’s Representations. The continuing accuracy of all Seller’s warranties and
representations in this Agreement in all material respects.
(c) Title Insurance. The Title Company must be ready, willing, and able to issue an
extended coverage American Land Title Association owner’s policy of title insurance in the
amount of the Purchase Price, insuring title in Purchaser to the Premises consistent with the
terms of this Agreement and subject only to the title exceptions approved or deemed approved
by Purchaser.
10.2 Seller’s Conditions. Seller’s obligation to close this transaction is subject to the
satisfaction of each of the following conditions:
(a) Purchaser’s Compliance. Purchaser’s fulfillment of each of its obligations under
this Agreement.
(b) Purchaser’s Representations. The continuing accuracy of all Purchaser’s
warranties and representations in this Agreement.
Attachment 1, Page 5 of 11
11. Closing 11.1 Closing Date. This transaction will be closed not later than February 20, 2016.
Each party may extend the Closing Date one (1) time by up to Fourteen (14) days if the
extension is required by illness, transportation delays, the unavailability of the Escrow Agent, scheduling of City Council Agendas, or other causes beyond the party’s reasonable control.
11.2 Manner and Place of Closing. This transaction will be closed by the Escrow Agent
in Springfield, Oregon, or at such other place as the parties may mutually agree to in writing.
Closing will take place in the manner and in accordance with the provisions set forth in this
Agreement.
11.3 Prorations, Adjustments.
(a) All ad valorem real property taxes, assessments, personal property taxes, utility
expenses, and obligations under all repair and maintenance contracts that are not terminated
or required to be terminated by this Agreement by the Closing Date (collectively, the
“Expenses”), and all rentals from tenants and other use fees receivable under any lease or
other agreement concerning the Property (collectively, the “Income”), will be prorated and
adjusted between the parties as of the Closing Date. At closing, Purchaser will be given a credit
against the purchase price equal to the sum of all accrued but unpaid Expenses, all refundable
tenant security deposits held by Seller, and all prepaid but not yet accrued Income. Any taxes
or additional penalties that would be due as a result of removal of the Property from any tax
deferral or special use assessment program will be [charged to Seller as though the Property
were removed from such program on the Closing Date] [assumed by Purchaser].
(b) Seller and Purchaser will each pay one-half of all conveyance, excise, or transfer
taxes and fees in connection with this sale, and Purchaser will pay the recording fees for Seller’s
deed.
(c) Seller will pay the premium for a standard owner’s title insurance policy in favor
of Purchaser in the amount of the purchase price. Any additional title insurance coverage or
endorsements requested by Purchaser or its lender will be paid by Purchaser.
(d) Seller and Purchaser will each pay one-half of the escrow and closing fees
charged by the Escrow Agent.
(e) Each party will pay its own attorney fees, if any.
11.4 Events of Closing. If the Escrow Agent has received the sums and is in a position
to cause the title insurance policy to be issued as described below, this transaction will be
closed on the Closing Date as follows:
(a) Seller will convey the real property to Purchaser by Bargain and Sale Deed,
subject to the matters accepted or deemed accepted by Purchaser under this Agreement.
(b) The Escrow Agent will calculate the prorations agreed to herein, and the parties
will be charged and credited accordingly.
(c) Any liens to be paid by Seller at closing will be paid and satisfied of record at
Seller’s expense.
(d) Purchaser will pay the entire purchase price to Seller in cash, minus the Deposit
as adjusted for the charges and credits set forth in this Agreement.
(e) The Escrow Agent will be committed to issuing the policy described in Section
11.5 upon recordation of the closing documents.
(f) Upon compliance with the parties’ closing instructions, the Escrow Agent will
record the deed to Purchaser at Purchaser’s expense.
11.5 Title Insurance. As soon as possible after the Closing Date, the Escrow Agent will
furnish Purchaser a standard American Land Title Association form of owner’s policy of title
insurance in the amount of the purchase price for the Property, subject only to the Escrow
Attachment 1, Page 6 of 11
Agent’s standard preprinted exceptions and exclusions for the form and except for the matters accepted or deemed accepted by Purchaser under this Agreement. The costs of additional or
extended title insurance beyond standard coverage will be paid by Purchaser, and the
availability of any such coverage will not be a condition of closing. 11.6 Possession. Subject to the rights of tenants, Seller will deliver possession of the
Property to Purchaser on the Closing Date. Purchaser will be entitled to receive directly from
the tenants all rents coming due after the Closing Date.
11.7 Acceptance of Property. Purchaser acknowledges that Purchaser has assessed,
or has had the opportunity to assess, the size, configuration, utility service, environmentally
sensitive areas, means of access, permitted uses, status of title, value, condition, and all other
material aspects of the Property, and, except as specifically stated herein, Purchaser is not
relying on, nor has Purchaser been influenced by, any statement or representation of Seller or
any agent or representative of Seller regarding any of such items. Except for any actionable
breaches of Seller’s representations and warranties contained herein, Purchaser’s acceptance of
the Property and the satisfaction or waiver of all Purchaser’s conditions to closing will be
evidenced solely by the closing of this transaction and without any other act or confirmation by
Purchaser. Purchaser does not have the option to close this transaction without accepting the
Property in its then current condition, and Purchaser acknowledges that except for any Seller’s
breach of an express warranty stated in this Agreement, Purchaser is acquiring the Property
“AS IS, WHERE IS” in its current condition existing as of the Closing Date, without any
representation or warranty of any kind or nature by Seller.
11.8 Waiver of Certain Claims. As part of the consideration for this Agreement,
Purchaser agrees that except for any breach by Seller of an express warranty stated in this Agreement, Seller has no liability, and Purchaser hereby waives any claims and releases Seller
for all liability, for any title, physical condition, or any other aspect of the Property, whether
direct or indirect, absolute or contingent, foreseen or unforeseen, and known or unknown. The waiver and release extend to Seller and Seller’s affiliates, successors, members, partners,
shareholders, directors, officers, employees, and agents, and their respective heirs, successors,
and assigns. Without limiting the generality of the foregoing, Purchaser waives all rights to contribution, offsets, and damages that in any manner relate to the compliance of the Property
with any law or regulation applicable thereto, including, without limitation, the Americans with
Disabilities Act, 42 USC §§12101–12213; the Fair Housing Act, 42 USC §§3601–3631; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC §§9601–
9675; the Resource Conservation and Recovery Act, 42 USC §§6901–6992k; the Clean Water
Act, 33 USC §§1251–1387; the Safe Drinking Water Act, 42 USC §§300f–300j-26; the
Hazardous Materials Transportation Act, 49 USC §§5101–5128; the Toxic Substances Control
Act, 15 USC §§2601–2692; and any and all other federal, state, and local personal disabilities
and environmental laws or regulations.
11.9 Indemnification. Seller will defend, indemnify, and hold harmless Purchaser from
and against all third-party claims for premises liability regarding any injury or damage to the
third party or its property that occurred on or about the Property before the Closing Date.
12. Defaults and Failure to Close
12.1 Seller’s Remedies. In the event that this transaction fails to close on account of a
default by Purchaser under this Agreement, the Deposit will be forfeited by Purchaser and
retained by Seller as liquidated damages as Seller’s sole remedy for the default. SUCH AMOUNT
HAS BEEN AGREED BY THE PARTIES TO BE REASONABLE COMPENSATION AND THE
Attachment 1, Page 7 of 11
EXCLUSIVE REMEDY FOR PURCHASER’S DEFAULT, SINCE THE PRECISE AMOUNT OF SUCH COMPENSATION WOULD BE DIFFICULT TO DETERMINE.
12.2 Purchaser’s Remedies. If this transaction fails to close on account of a default by
Seller under this Agreement, Purchaser’s sole and exclusive remedy will be the return of the Deposit with Purchaser thereby waiving any other remedy that Purchaser may have against
Seller at law or in equity, including without limitation the right to specific performance.
12.3 Defaults. Except for (a) Purchaser’s failure to pay any portion of the Deposit as
and when due hereunder or (b) either party’s wrongful failure to close or satisfy a condition to
closing by the required Closing Date, neither party will be deemed in default under this
Agreement unless the party is given written notice of its failure to comply with this Agreement
and the failure continues for a period of Three (3) days after the date the notice is given. This
section will not be construed as extending the time by which any notice or contingency waiver
must be given.
12.4 Costs and Attorney Fees. If suit, action, arbitration, or mediation is instituted to
interpret or enforce the terms of this Agreement or with respect to any dispute under this
Agreement, the prevailing party is entitled to recover from the other party the sum that the
court, arbitrator, or mediator may adjudge reasonable as costs and expert witness and attorney
fees in any such proceeding, at trial, on any appeal or petition for review, and in any
bankruptcy proceeding (including the adjudication of any issues peculiar to bankruptcy law), in
addition to all other sums provided by law.
12.5 Waiver of Jury Trial. AS PART OF THE CONSIDERATION FOR THIS AGREEMENT,
EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO TRIAL BY JURY IN CONNECTION
WITH ANY DISPUTE OR ACTION UNDER THIS AGREEMENT.
13. Conduct of Business
13.1 Insurance. Seller agrees to continue to maintain its current casualty and liability insurance policies on the Property until the Closing Date but has no responsibility for
maintaining any such insurance after the Closing Date or to assign any policy to Purchaser.
13.2 Property Maintenance. Between the date of this Agreement and the Closing
Date, Seller agrees to maintain and make ordinary repairs to the Property so as to cause the
Property to be delivered to Purchaser in substantially the same condition existing as of the end
of the Review Period, ordinary wear and tear, damage by casualty, and damage by
condemnation excepted. In no event will Seller be required to make any capital repairs or
replacements to the Property between the Effective Date and the Closing Date.
13.3 No Additional Obligations. Except as provided in this section, Seller has no
obligation to maintain, repair, alter, reconstruct, or replace any portion of the Property or
preserve or enter into any existing or new leases or service contracts, and Purchaser
acknowledges that there exist no express or implied representations or covenants to do so.
14. Legal Relationships
14.1 Relationship of Parties. This Agreement creates only the relationship of seller and
buyer, and no joint venture, partnership, or other joint undertaking is intended hereby. Neither
party hereto will have any rights to make any representations or incur any obligations on behalf
of the other. Neither party has authorized any agent to make any representations, admit any
liability, or undertake any obligation on its behalf. Neither party is executing this Agreement on
behalf of an undisclosed principal.
14.2 No Third-Party Beneficiaries. No third party is intended to be benefited or
afforded any legal rights under or by virtue of this Agreement.
Attachment 1, Page 8 of 11
14.3 Joint and Several Liability. If either party comprises more than one person or entity, the obligations of each person or entity comprising such party under this Agreement will
be joint and several.
14.4 Indemnified Parties. Any indemnification contained in this Agreement for the
benefit of a party will extend to the party’s members, directors, shareholders, officers,
employees, and agents.
14.5 Assignments and Successors. Purchaser may not assign or otherwise transfer
this Agreement or any interest herein, voluntarily, involuntarily, or by operation of law, without
the prior written consent of Seller in each instance, which consent will not be unreasonably
withheld. Purchaser will not be released from its obligations under this Agreement in the event
of any assignment or transfer by Purchaser. Subject to the foregoing, this Agreement will bind
and inure to the benefit of the parties hereto and their respective successors and assigns.
14.6 Attorney Representation. This Purchase and Sale Agreement was prepared by
the law firm of Leahy, Van Vactor, Cox & Melendy, LLP who represented and advised the
Purchaser in this transaction. Seller was and is hereby advised that Leahy, Van Vactor, Cox &
Melendy, LLP only represents the Purchaser and Seller has had the opportunity to confer with
their own expert regarding this Purchase and Sale Agreement and the terms and provisions
thereof.
15. General Provisions
15.1 Notices. Notices under this Agreement must be in writing and, if personally
delivered or sent by facsimile, will be effective when received. If mailed, a notice will be
deemed effective on the second day after deposited as registered or certified mail, postage
prepaid, directed to the other party. Notices must be delivered, mailed, or sent by facsimile to
the following addresses:
Seller: PCLT Development, LLC
c/o Steve Whitson
Proud Ground 5288 N. Interstate Avenue
Portland, OR 97219
Facsimile No.: 503-493-7333 Email: steve@proudground.org
Purchaser: City of Springfield
225 Fifth Street
Springfield, OR 97477
Attn: Ken Vogeney
Telephone: 541-736-1026
Cellular: 541-556-7787
Email: kvogeney@springfield-or.gov
Either party may change its address for notices by at least fifteen (15) days’ advance
written notice to the other.
15.2 Time of Essence. Except as otherwise specifically provided in this Agreement,
time is of the essence for each and every provision of this Agreement.
15.3 Invalidity of Provisions. If any provision of this Agreement, or any instrument to
be delivered by Purchaser at closing under this Agreement, is declared invalid or is
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unenforceable for any reason, the provision will be deleted from the document and will not invalidate any other provision contained in the document.
15.4 Neutral Construction. This Agreement has been negotiated with each party
having the opportunity to consult with legal counsel and will be construed without regard to which party drafted all or part of this Agreement.
15.5 Captions. The captions of the sections and paragraphs in this Agreement are
used solely for convenience and are not intended to limit or otherwise modify the provisions of
this Agreement.
15.6 Waiver. The failure of either party at any time to require performance of any
provision of this Agreement will not limit the party’s right to enforce the provision. Waiver of
any breach of any provision will not be a waiver of any succeeding breach of the provision or a
waiver of the provision itself or any other provision.
15.7 Subsequent Modifications. This Agreement and any of its terms may be changed,
waived, discharged, or terminated only by a written instrument signed by the party against
whom enforcement of the change, waiver, discharge, or termination is sought.
15.8 Saturdays, Sundays, and Legal Holidays. If the time for performance of any of
the terms, conditions, and provisions hereof falls on a Saturday, Sunday, or legal holiday, then
the time of the performance will be extended to the next business day thereafter.
15.9 Venue. In any action brought to interpret or enforce any of the provisions of this
Agreement, the venue will be in Lane County, Oregon.
15.10 Applicable Law. This Agreement will be construed, applied, and enforced in
accordance with the laws of the state of Oregon. All sums referred to in this Agreement will be
calculated by and payable in the lawful currency of the United States.
15.11 Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the Property and supersedes and replaces all written and oral
agreements previously made or existing between the parties. 15.12 No Offer. By providing an unexecuted copy of this Agreement to any person,
neither party is deemed to have made an offer to sell or purchase or otherwise indicated its
willingness to enter into any transaction with respect to the Property, and this Agreement will not be binding on any party unless and until it has been fully executed and delivered by Seller
and Purchaser.
15.13 No Recording. Neither this Agreement nor any memorandum or short form
thereof may be recorded.
15.14 Counterparts. This Agreement may be executed simultaneously or in
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same contract.
15.15 Facsimile Copies. Either party may rely on facsimile copies of this Agreement to
the same extent as the originals.
15.16 Statutory Warning (ORS 93.040(2)). 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
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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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
SELLER: PURCHASER:
By: By:
Printed Name: Printed Name:
Its: Its:
Date Executed: Date Executed:
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SITE
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