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HomeMy WebLinkAboutAgreement APPLICANT 10/10/2006 . . AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGATE PROPERTY DATED: October 10, 2006 PARTIES: SunTrust Land Company, LLC 780 N.W. York Drive, Suite 204 Bend, Oregon 9770 I ("Seller") AND Willamalane Park and Recreation District 200 South Mill Street Springfield, Oregon 97477-7303 (541) 736-4044 ("Buyer") RECITALS: A. Seller is the owner of MountainGate Residential Development located west of South 67'11 Street, south of Main Street, and east of South 58th Street, consisting of approximately 220.56 acres, as highlighted in yellow on Exhibit A and more particularly described Exhibit B (hereinafter "MountainGate"). B. Seller desires to sell and Buyer desires to purchase a portion of MountainGate consisting of approximately 86 improved acres as generally highlighted in yellow on Exhibit C (hereinafter the "Property"). C. The Property generally consists of "Mountain Park," as highlighted in yellow consisting of approximately 61.8 acres at the top of Potato Hill; "West Park," as highlighted in pink, and "Quarry Park," as highlighted in green, together consisting of approximately 23.23 acres; and "Trails and Access Points" as highlighted in blue consisting of a trail/access point connecting West Park and Mountain Park in the northwest; a trail and access point connecting Quarry Park, Mountain Park and the southern end of the property; trails and access points connecting Mountain Park with the major roadway on the northeast and southeast side of Mountain Park; and a Trailhead which will include a six to eight space paved parking lot in a reasonable location within the development that will minimize construction costs and maximize access and convenience to the Trail System; all as generally shown on Exhibit D. The exact location and configuration of the Property shall be subject to mutual agreement of the parties, but shall be generally as depicted in the City of Springfield approved Master Plan and in Exhibit A to the draft agreement of August 2001. D. . Buyer intends to use the Property for parks, recreation and open space available to thc public. Seller is willing to improve the Property to build trails, trailheads and a neighborhood . d' 'O-!O-O~ AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 1 (do~~~~celve . J.. nh f1 ~ Planner: ~~.~ . : I 6+Wcp~ . . park, and involve Buyer in the design and plans and with standards and specifications acceptable to Buyer. In consideration of the foregoing and the mutual covenants contained herein the parties agree as follows: ' , i 1. Purchase and Sale. The Seller agrees to sell to the Buyer, and the Buyer agrees to purchase from the Seller, the Property on the terms and conditions set forth in this Agreement. 2. Purchase Price. The purchase price for the Property shall be a maximum of $1,000,000. 3. Payment of Purchase Price. The purchase price shall be payable as follows: (a) Buyer shall pay Seller $300,000 when the following conditions are met: (i) Mountain, Quarry and West Parks are conveyed free and clear to Buyer; (ii) The main access trail within Mountain Park is completed and provides access to the summit of Potato Hill; (iii) The neighborhood park improvements, as provided in this Agreement, are completed within Quarry Park; (iv) The trail between Quarry Park and West Park is completed; (v) At least two trail access points to Mountain Park are constructed and opened to the public; and (vi) required herein. The fire breaks around the perimeter of Mountain Park are completed as The parties expect that the transfers and improvements will be completed by September 30,2007, but, in any event, no later than September 30, 2008. (b) At the time of closing provided for in Paragraph 3(a) above, the SDC's, as described below, actually collected shall be paid to Seller but not to exceed $350,000.00. Thereafter, until the remaining trails, trailhead, and trail/access points are constructed and , conveyed to Buyer in a condition and location reasonably acceptable to Buyer, then a percentage of the SDC's collected shall be withheld. That percentage shall be cal6ulated so that $350,000 will be withheld from payment until the remaining trails, trailhead and!trail/access points are constructed and conveyed to Buyer in a condition and location reasonably acceptable to Buyer. The remaining improvements shall be completed and conveyed to Buyer no later than September 30,2009. Upon acceptance of those improvements by Buyer, as provided above, the SDC's collected and withheld shall be paid to Seller. AGREEMENT OF PURCHASE ANO SALE OF MOUNTAINGA TE PROPERTY - PAGE 2 (doc i 29296) I . . Example. Assume that the items provided in Paragraph 3(a) are completed, accepted by Buyer, and conveyed to Buyer on September 30, 2007. At that time, Seller would be paid $300,000 plus the SDC's actually collected by Buyer from the MountainGate Residential Development to the date of closing. Assume that such SDC's collected by September 30,2007 are $175,000. Thus, Seller would be paid $475,000 at closing. The amount withheld from future payments ofSDC's would be 66 2/3 % ($1,000,000 - $475,000 =$525,000 remaining. $350,000/$525,000 = 66 2/3% to be withheld to provide a set-aside of $350,000.) (c) After Seller has complied with the terms set forth in paragraph 3(a) above, then Buyer shall begin making quarterly payments to Seller, except as may be provided in paragraph 3(b) above, based upon the collection of SDCs, but in an aggregate amount of not greater than $700,000. "SDCs" means System Development Charges actually collected by Buyer from lots within the MountainGate Residential Deve]opment less any charges paid to the City of Springfield attributable to its services in collecting such SDCs. The first quarterly payment shall be calculated based upon SDCs charged and actually collected by Buyer from the MountainGate Residential Development up to the date of the first quarterly payment. Subsequent quarterly payments shall be in the amount of SDCs actually collected since the date of the previous quarterly payment. Quarterly payments shall be based upon calendar quarters. In any event, payments for SDCs shall only include SDCs collected by September 30,20] 7. In no event shall the payments made under paragraph 3(c) exceed $700,000, but may be less than $700,000 if the amount ofSDC's collected by September 30,2017 is less than $700,000, except as provided below. Should future changes in the applicable SDC law prevent Buyer from collecting SDCs or reduce the Buyer's SDCs to an amount below Buyer's SDC rates on July 1,2006, then Buyer agrees to pay 50 percent of the difference between $700,000 and the amount ofSDCs paid to Seller by the date such change in the SDC laws becomes effective. Such 50 percent amount shall be paid in quarterly payments with the payments based upon the number of housing units in MountainGate for which Buyer would have actually collected SDCs, or did actually collect SDCs, times the applicable rate for SDCs in effect before the change in law. If such 50 percent amount has not been fully paid by September 30, 2017, then the unpaid portion of such 50 percent amount shall be paid to Seller on September 30, 2017. Example 1. Assume that as of January 1, 2010, Buyer can no longer collect SDC's. Further assume that as of December 31,2009, Buyer has paid Seller $300,000 pursuant to paragraph 3(a) and had further paid $100,000 pursuant to paragraph 3(c). Thus, Buyer would be obligated to pay Seller $300,000 (e.g. $700,000 - $100,000 = $600,000 x 50% = $300,000). That $300,000 would be paid in quarterly payments as if SDCs were being collected under the system in effect on December 31,2009. These payments would be subject to the potential 50% withholding as provided in paragraph 3(b). Example 2. Assume the same facts as in Example 1 except instead of SDCs being eliminated, they were reduced on January 1,2010 from $1,000 per unit to $600 per unit. In this situation, Buyer would be obligated to pay Seller $800 per unit (e.g. $] ,000 - $600 = $400 x 50% = $200, plus the collected amount of$600 = $800) from January 1,2010 uniil September 30, 20] 7 or until the full $700,000 was paid to Seller, whichever occurs first. Again, these payments AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 3 (doc 129296) . . are potentially subject to the limitations set forth in paragraph 3(b). Nothing in this Agreement would limit Buyer from paying cash in lieu of SDCs for the parkland and improvements. (d) Buyer agrees to make reasonable efforts to collect SDCs. The parties agree that the purchase shall remain valid even if Buyer is prevented from collecting SDCs by law. (e) Buyer's obligation to pay the purchase price shall terminate upon total payments of $1 ,000,000 or on September 30,2017, whichever occurs first. Buyer shall have no financial obligation or liability to make payments to Seller after September 30,2017. 4. Closing. This Agreement shall be executed on or before October 3 I, 2006 and a Memorandum of Contract shall be recorded in the Lane County Property Records. Closing shall occur as provided in Paragraph 3 above, and shall occur at Evergreen Land Title Company of 1651 Centennial Blvd., Springfield, OR 97477. 5. Conditions to Closing Conditions Precedent to Buver's Obligations. The Close of escrow the conveyances are subject to the satisfaction, not later than the date of closing, of the following conditions and obligations of the parties: (a) Title. At closing, Seller shall convey fee simple title to that portion of the Property by a statutory warranty deed, subject only to nondelinquent real property taxes and the Permitted Exceptions. Within 90 days of the execution of this agreement, Seller, at Seller's cost and expense, shall cause Evergreen Land Title Company to issue to Buyer its preliminary title report on the Property, along with copies of all documents that give rise to the exceptions listed on the report. Within 30 days of receiving the Preliminary Title Report and underlying documents, Buyer shall give Seller written notice setting forth the exceptions that are not acceptable to Buyer (the "Unacceptable Exceptions"). All other exceptions shall be deemed acceptable (the "Permitted Exceptions"). Seller shall have 30 days after receiving Buyer's notice within which to give Buyer its written notice stating whether it will remove some or all of the Unacceptable Exceptions; provided, however, that Seller must remove all monetary liens and encumbrances to Buyer's reasonable satisfaction on or before each closing date. If Seller agrees to eliminate the Unacceptable Exceptions, Seller must do so at its cost and as of each closing date. If Seller declines to eliminate all of the Unacceptable Exceptions, Buyer has the right to terminate this agreement by written notice given to Seller within 60 days of receiving Seller's notice. B. Representations. Warranties. and Covenants of Seller. Seller shall have duly performed each and every agreement to be performed by Seller hereunder and the Seller's representations, warranties, and covenants set forth in this Agreement shall be true and correct as of each closing date. AGREEMENT OF PURCHASE AND SALE OF MOUNT AINGA TE PROPERTY - PAGE 4 (doc 129296) . . C. No Material Changes. At closing Seller warrants that there will be no material adverse changes related to or connected with the Property, whether directly or indirectly. D. Site Study. Before closing, Buyer may engage consultants or engineers of Buyer's choosing to conduct site studies of the Property as Buyer deems necessary. Buyer and its agents shall have the right to enter the Property at reasonable times to make such tests, inspections, studies, and other investigations as Buyer may require, at the Buyer's expense and risk. Buyer shall indemnify and hold Seller harmless from any loss, damage or claim arising out of Buyer's access to the Property for the purpose of making tests, inspections, studies and other investigations. It shall be a condition to closing that the results of such studies be acceptable to Buyer in its sole discretion. 6. Title Insurance. At closing, Seller shall provide, at its expense, a standard owner's title insurance policy in the amount of the purchase price, specified above, insuring title vested in Buyer, subject only to Permitted Exceptions and other matters that may be approved in writing by Buyer. Seller shall pay one-half of all escrow fees and costs, recording fees and closing costs. Buyer shall pay the other one-half of the escrow fees and costs, recording fees and closing costs. 7. Obligations of Seller. (a) By closing, Seller shall provide the closing company with any lien affidavits or mechanic's lien indemnification as may be requested by Evergreen Land Title Company in order to issue the title policy. (b) Seller shall design and construct trails and other park improvements, including: a trail system in Mountain Park, West Park and Quarry Park; connecting trails among the parks; Trail! Access Points between Mountain Park and the major roadway on the northeast and southeast side of Mountain Park; a trail connecting Quarry Park and Mountain Park to the southern edge of Mountain Gate; Trailhead improvements, including a paved, six to eight space parking lot; and neighborhood park improvements at Quarry Park. Buyer agrees to provide its registered Landscape Architect to complete the Quarry Park design and specification work. Seller shall be responsible for providing the necessary engineering, surveying and a digital base map for Quarry Park. The design and construction standards for the park and trail improvements shall be subject to mutual agreement of the parties. If Buyer and Seller cannot come to an agreement on construction and/or site master plans prior to construction, Buyer has the option to revoke this agreement in its entirety and not purchase the lands and improvements. If improvements are not constructed as specified, engineered, and/or designed and agreed upon, Buyer has the option to purchase or not purchase any or all of the property. Buyer will not object to the properties not purchased being held in private and/or association ownership for park and open space purposes. (c) Seller shall initiate and pay the application fee for all zoning changes required for the parkland and Buyer shall initiate the Metro Plan Amendment in conjunction with the City of AGREEMENT OP PURCHASE AND SALE OP MOUNTAINGA TE PROPERTV - PAGE 5 (doc 129296) . . Springfield. The parties shall share equally the costs and expenses of the preparation of the application for the zoning changes and Metro Plan Amendment (e.g. consultant services). Additionally, the parties shall share equally in the costs and expenses of preparation of a site plan review for Quarry Park, if required by the City of Springfield. (d) Seller shall construct a neighborhood park at Quarry Park, which shall include, at a minimum, the following improvements: (i) A one-acre minimum irrigated and accessible playfield. Seller will strive to provide 1.5 acres of irrigated turf, or more. (ii) Water, sewer, storm water drainage and electrical service stub-outs. (iii) Playground. (iv) Half-court basketball court. (v) Landscaping. The specifications for the neighborhood park shall be agreed upon with Buyer. The maximum amount to be spent by Seller for the neighborhood park shall be $200,000 in actual expenses (i.e. no overhead or profit). Parts of the neighborhood park not completed within the allocated $200,000 may be constructed by Buyer. Seller has the option to complete the neighborhood park at its sole expense. It is understood that the $200,000 limitation is for the neighborhood park improvements only, and does not include the cost of the reclamation of the rock quarry. (e) Seller shall construct trailhead improvements as required as a part of the Master Plan Conditions of Approval. However, Buyer agrees to work with Seller to site the Trailhead in a reasonable location within the development that will minimize construction costs and maximize access and convenience to the Trail System. The Trailhead shall include at least six to eight paved parking spaces. (f) Seller shall create a firebreak near the proposed structures around Mountain Park in accordance with the standards of the City of Springfield, or if none, by normal standards which are customary and prudent where structures are built adjacent to forested areas. Such firebreaks and Trail/Access Points shall be designed and constructed by Seller with input from Buyer and constructed according to standards and specifications acceptable to Buyer. Further, the Trail/Access Points located on Mountain Park shall include a gravel tread width of 10', and height and width clearance of 10' for the first 100' of trail. (g) Seller shall construct a Trail System generally consistent with the conceptional plan identified in the MountainGate Master Plan and further refined by the MountainGate Trails Feasibility Study (LLW, Inc., 7/23/04). Most of the trails shall be compacted gravel with a four- foot tread width. Approximately 850 feet of disabled accessible paved trail should be included. The maximum amount to be spent by Seller on the trail improvements shall be $100,000 in AGREEMENT OF PURCHASE AND SALE DF MOUNTAINGA TE PROPERTY - PAGE 6 (doc 129296) . . actual expenses (i.e. no overhead or profit). Trail work not completed within the allocated $100,000 may be constructed by Buyer. Seller has the option to complete the Trail System at its sole expense. It is understood that the $100,000 limitation is for construction of trails only. Any net proceeds from timber harvested on the Property shall be used by Seller to construct trails in addition to the $100,000 referred to above. (h) Buyer shall request the City of Springfield not to charge an Annexation Fee associated with annexing the Property (i.e. parklands) into the City. Ifthe City charges a fee, the parties shall equally share in the costs of annexing the Property into the City. (i) Seller shall be responsible for any required wetland monitoring, report filing and compliance on any wetlands located on the Property conveyed to Buyer. Such obligations by Seller shall survive closing. (j) Seller shall be responsible for the long-term storm water management and flood control functions of any storm water management facilities (e.g. detention or bio-filtration basins) on the Property conveyed to Buyer. Seller agrees to indemnify, defend and hold Buyer harmless from any and all liability arising in any way from the design, construction and maintenance of such storm water and flood control features. However, Buyer shall be responsible for the maintenance of any storm water facility which exclusively serves the park properties and facilities. Buyer shall pay its proportionate share of the maintenance costs associated with storm water facilities that serve the park properties. The parties shall mutually agree on a methodology but such methodology shall be based on the comparable amount of impervious surface area. Such Seller obligations shall survive closing. (k) consent. Seller agrees to allow no logging on the Property without Buyer's written (I) Seller is responsible for reclamation of the quarry site at Quarry Park which shall be consistent with a Reclamation Plan to be prepared by Seller and approved by Buyer. Seller agrees to work with Buyer's staff to create a soil base within Quarry Park that will provide sufficient soil depth (i.e. minimum of three feet) and quality to accommodate underground irrigation systems and other utilities and to ensure that grass turf, shrubs, trees and other plants can grow well on the site. The parties agree that the costs associated with reclaiming the quarry are in addition to the $200,000 limitation on construction of the park improvements and the $100,000 limitation on construction ofthe Trail System. (m) Seller shall involve Buyer in all designs and plans for the Property. Such plans shall be prepared by qualified professionals, at Seller's expense, but with input from Buyer. All plans shall be mutually agreeable to the parties. (n) The Property shall be separate legal lots before conveyance to Buyer. 8. Seller's Representations and Warranties. In addition to any express agreements of Seller contained herein, the following constitute representations and warranties of Seller to Buyer: AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 7 (doc 129296) . I I I . . (a) Representations Regarding Seller's Authority. (i) Seller has the legal power, right, and authority to enter into this Agreement and all of the instruments contemplated herein, and to consummate the transactions contemplated herein. (ii) All requisite action (limited liability company, trust, partnership, or otherwise) has been taken by Seller in connection with entering into this Agreement, the instruments referred to herein, and the consummation of the transactions contemplated herein. No further consent of any member, partner, creditor, investor or any other party is required. (iii) The persons executing this Agreement and the instruments referred to herein on behalf of Seller and the members, partners, officers, managers, or trustees of Seller, if any, have the legal power, right, and actual authority to bind Seller to the terms and conditions of this Agreement. (iv) This Agreement and all documents required to be executed by Seller are and shall be valid, legally' binding obligations of and enforceable against Seller in accordance with their terms. (v) Neither the execution nor delivery of this Agreement and documents referred to herein, nor the incurring of the obligations set forth herein, nor the consummation of the transactions herein contemplated, nor compliance with the terms of this Agreement and the documents referred to herein conflict with or result in the material breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other evidence of indebtedness, or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease, or other agreements or instruments to which Seller is a party or affecting the Property. (b) Warranties and Representations Pertaining to Real Estate and Legal Matters. (i) Except as disclosed to Buyer in writing, there is no litigation, claim, or arbitration, pending or threatened, with regard to the Property or its operation. (ii) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or, to the best of Seller's knowledge, threatened against Seller, nor are any such proceedings contemplated by Seller. (iii) Seller has not entered into any other contracts for the sale of the Property, nor do there exist any rights of first refusal or options to purchase the Property. (iv) Any licenses and permits obtained by Seller have been fully paid for and are not subject to any liens, encumbrances, or claims of any kind. AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 8 (doc 129296) . . (v) Seller has not sold, transferred, conveyed, or entered into any agreement regarding "air rights" or other development rights or restrictions relating to the Property. (vi) Seller has not received any notices of violation or advisory action by regulatory agencies regarding environmental control matters or permits compliance with respect to the Property. (vii) There are no proceedings, governmental administrative actions, or judicial proceedings pending or, to the best of Seller's knowledge, contemplated under any federal, state, or local laws regulating the discharge of hazardous or toxic materials or substances into the environment. (viii) To the best of Seller's knowledge, Seller has not, during its ownership of the Property, stored, produced, or disposed of any hazardous substance, including asbestos, on the Property. (ix) Seller warrants to the best of Seller's knowledge, that as of the date of each closing, there shall have been no violation of any regulation under S 404 of the Clean Water Act (33 USC S 1344) or the Oregon Removal/Fill Law (ORS 196.800-196.9900). (c) General Representation. Seller's representations and warranties contained herein are true and accurate, and are not misleading. Seller's representations and warranties contained herein shall be continuing and shall be true and correct as of the closing dates with the same force and effect as if remade by Seller in a separate certificate at that time. Seller's representations and warranties contained herein shall survive the close of escrow and shall not merge into the deed and the recordation of the deed in the official records. 9. As Is. Other than Seller's representations and warranties contained in this Agreement and those contained in any instrument delivered to Buyer at closing, Buyer acknowledges that it is purchasing the Property AS IS. 10. Damage or Destruction. Until close of escrow, the risk ofloss shall be retained by Seller. In the event of fire or other destruction of the property then Buyer may terminate this agreement without any further obligations. 11. Notices. All notices or other communications required or permitted under this Agreement must be in writing and must be (I) personally delivered (including by means of a professional messenger service), which notices and communications will be deemed received on receipt at the office of the addressee; (2) sent by registered or certified mail, postage prepaid, return receipt requested, which notices and communications will be deemed received three days after deposit in the United States mail, postage prepaid; (3) sent by overnight delivery using a nationally recognized overnight courier service, which notices and communications will be deemed received one business day after deposit with the courier; or (4) sent by telefax, which notices and communications will be deemed received on the delivering party's receipt of a transmission confirmation. AGREEMENT OF PURCHASE AND SALE OF MOUNT AINGA TE PROPERTY - PAGE 9 (doc 129296Y . . To Buyer: Robert W. Keefer, Superintendent Willamalane Park and Recreation District 200 South Mill Street Springfield, Oregon 97477-7303 . With a Copy to: Dwight G. Purdy Thorp, Purdy, Jewett, Urness & Wilkinson, P.C; 1011 Harlow Road, Suite #300 ' Springfield, OR 97477 To Seller: Mark Vukanovich SunTrust Land Company, LLC 780 N.W. York Drive, Suite 204 Bend, Oregon 9770 I Notice of change of address shall be given by written notice in the manner detailed in this paragraph. 12. Broker. Seller and Buyer represent and warrant to the other that no broker or finder has been engaged by it, respectively, in connection with the transaction herein. 13. Required Actions of Buyer and Seller. Buyer and Seller agree to execute all such instruments and documents and to take all actions pursuant to the provisions of this Agreement in order to consummate the purchase and sale contemplated and shall use their best efforts to accomplish the close of escrow in accordance with the provisions here. 14. Entry. Buyer, its agents, and designees shall have reasonable access to the Property. Buyer's right to access does not negate the warranties and covenants contained here. Buyer shall indemnify and hold Seller harmless from any loss, damage, or claim arising out of the Buyer's access to the Property. 15. Naming of Parks. Buyer and Seller will mutually agree upon the formal names of each park located on the Property. If the Parties cannot agree upon the formal names, then the working names identified in the Master Plan shall be used. I 16. Modification of Boundaries of Mountain Park. If Seller reasonably needs to modify the boundaries of Mountain Park after it is conveyed to Buyer, then Buyer agrees to fully cooperate with a change in the boundaries provided the acreage retained by Buyer in Mountain Park is not reduced by more than an acre. If Seller AGREEMENT OF PURCHASE AND SALE OF MOUNT AINGA TE PROPERTY - PAGE 10 (doc 129296) . . reasonably needs to modify the boundaries of Mountain Park so the amount of acreage retained by Buyer is reduced by more than an acre, then the parties shall renegotiate the purchase price. 17. Remedies. I f there is a breach of this Agreement, Seller and Buyer shall have all remedies available in law or at equity as if specifically set forth herein. 18. Miscellaneous. (a) Partial Invalidity. If any term or provision ofthis Agreement or the application to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. (b) Waivers. No waiver of any breach of any covenant or provision contained here shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision here contained. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act. (c) Survival of Representations. The covenants, agreements, representations, and warranties made here shall survive the close of escrow and shall not merge into the deed and the recordation of it in the official records. (d) Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the permitted successors and assigns of the parties to it. (e) Attorney Fees. Ifa party to this Agreement brings any action or suit against another party to this Agreement by reason of any breach of any of the covenants, agreements, or provisions on the part of the other party arising out of this Agreement, then the prevailing party shall be entitled to have and recover from the other party all costs and expenses of the action or suit, including actual attorney fees, at trial and on appeal. (f) Entire Agreement. This Agreement (including any exhibits attached to it) is the final expression of, and contains the entire agreement between, the parties with respect to the subject matter of the Agreement and supersedes all prior understandings with respect to it, including but not limited to, the Sale Agreement and Receipt for Earnest Money and all addenda thereto and/or modifications thereof. This Agreement may not be modified, changed, supplemented, or terminated, nor may any obligations under it be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted here. The parties do not intend to confer any benefit on any person, firm, or corporation other than the parties hereto. AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 11 (doc 129296) . . (g) Time of Essence. The Seller and the Buyer hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation, and proVISIOn. (h) Construction. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural, and the masculine shall include the feminine, and vice versa. This Agreement shall not be construed as ifit had been prepared by one of the parties, but rather as ifboth parties had prepared it. Unless otherwise indicated, all references to paragraphs and subparagraphs are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated by this reference. If the date on which the Buyer or the Seller is required to take any action under the terms ofthis Agreement is not a business day, the action shall be taken on the next succeeding business day. 19. Governing Law. The parties acknowledge that this Agreement has been negotiated and entered into in the state of Oregon. The parties expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the state of Oregon. 20. Statutory Disclaimer. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 197.352. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 197.352. /1/1/ 1/1// /1/1/ 1//1/ 1/1// /1/1/ /1/1/ AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 12 (doc 129296) . . IN WITNESS WHEREOF, the parties have executed this Agreement as ofthe date and year written above. SELLER: SUNTRUST LAND COMPANY, LLC ~ B~ ark Vukanovich, Managing Member THE STATE OF OREGON COUNTY OF Y/.,~ ) ) ) This instrument was acknowledged before me on October ID , 2006 by Mark Vukanovich, Managing Member of Sun Trust Land Company, LLC. . OFFICIAL SEAL KIMBERLY D HUBBARD '. ;-' NOTARY PUBLIC-OREGON .' COMMISSION NO. 378267 MY COMMISSION EXPIRES MAR B. 2008 ~~cD.M~b~ No ary PublIc r Oregon BUYER: WILLA ECREA TION DISTRICT By: T I ) ) ) This instrument was acknowledged before me on October 10, 2006 by Lee Beyer, President Pro- Tern of Willamalane Park & Recreation District. [I OFFICIAL SEAL DWIGHT G. PURDY , i NOTARY PUBLIC-OREGON "'.f COMMISSION NO. 371935 MY COMM:S'.:~.~~;~X'",J!r~s SEPTEMBER n 2007 -___.-..~... ........--...0_........- (signatures continued on next page) AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGATE PROPERTY - PAGE 13 (doc 129296) . . By:~l0. \~ Robert W. Keefer, Secretary THE STATE OF OREGON ) ) COUNTY OF LANE ) This instrument was acknowledged before me on October 10, 2006 by Robert W. Keefer, Secretary ofWillamalane Park & Recreation District. ~' O,,'"~,~ .:')liEf DWIGHT G. PURDY \', ! NOTMY PllBLlC-QREGON "'Ii ...... COMMISSION NO. 371935 MY ::':~I!r~M;ssJG~!r'i;'l;.jE;, ~EPTEMBf.R 27, 2007 --=.~-'. - _._~.~ AGREEMENT OF PURCHASE AND SALE OF MOUNTAINGA TE PROPERTY - PAGE 14 (doc 129296) FOR ASSESSMENT . AND TAXATION ONLY -. " o = 019-38 e ~ : II 1...'.'...;:-.......-- -I 18 02 & INDE SPRINC NAn 83, , nO. r. to" u 3 g ~ . ~ . ./ i' . 3 " 0 ~ ~ II .....-.. ~ . 019- m /1_ .. 1/4 COR. "G"::;.~" po...- .t.a~a I ~ ~ eSEE , 'j I,. : b.t?- ~5 , '".", '" I '\ 1 I J ~l I " .I 1, r I t------___ I rQ)]9~ ]5 I ~" , I ~ TAX lDT'TD ~ MN> 18 02 02 ,: I" ,.. n" ..r~,...c:.<< .9 9 ~ ...., ::JUt I I I TAX lOTTED ml tw> 18 ae II , I I i ~ S 'J' .---r;O ............ - -- -----i- 18 0 & INI SPRINGI ~o 7 - A-\~-\s Exhibit Page A .j., . PARCEL ONE: Beginning 'althe Brass Cap marking the Southwest corner of the T. Maynard Donation Land Claim No. 44, Township 17 South, Range 2 West the Willamette Meridian; run thence South 690 11' 45" East 361.00 feet; thence South 1 0 43' 43" West 322.66 feet; thence South 880 11' 48" East 385.82 feet to a point on the boundary of EASTHAVEN SUBDIVISION, as platted and recorded In File 76,. Slide 192, Lane County Oregon Plat Records; run thencs along said boundary South 1048' 16". West 212.20 faat; thence South 26039' 33" East 139.62 feet; thence South 10 66' 36" West 136.43 feet: thence South 6022' 13" Wesl 64.77 feet; thence South 2002' 43" West 160.07 feet; thence North 880 11' 46" West 99.22 feet; thence South 14040' 06" West 115.77 feet; thence South 10 43' 43" West 360.53' feet; thence South 68040' 48" Eest 100.41 feet; thence South 61047' 36" East 117.80 feet; thence South 670 69' 24" East 144.93 feet; thence leaving said Plat boundary South 790 42' 24" East 30.13 feet; thence South 1043' 42" West 982.37 feet; thence North 79044' 26" West 202.24feet;.thence South 300 43' 43" West 108.61 feet; thence along the arc of e 46.00 foot redius curve to the right, the long chord of which beers South 12054' 46" West 47.79 feet; thence South 460 00' 58" East 84.96 feet; thence South 10 43' 43" West 130.00 feet; thence South 67042' 56" Eest 213.60 feet; thence South 1043' 43" West 462.66 feel; thence North 870 44' 49"West 973.06feet to the True Point of Beginning; run thence North 220 16' 34" East 923.00 faet; thence North 300 46' 57" West 92.67 feet; thance North 250 19' 10" West 96.02 feet; thence North 110 10' 22" West 131.49 feet; thence North 73044' 26" East 64.67 feet; thence South 32030' 36" East 121.36 feet; thence elong the arc of a 46.00 foot radius curve to the rIght, the. long chord of which beers North 410 07' 32" East 13.55 feet; thence North 320 30' 48" West 226.16 feet; thence North 700 10' 22" East 99.84 feet; thence North 47026' 61" West 44.47 feet; thence North 370 15' 32" East 109.21 feet; thence North 220 44' 11" West 90.47 feet; thence North 500 31' 56" West 154.11 feet; thence North 42060' 03" East 66.07 feet; thence North 38052' 01" West 1 08.94feet; thence along the arc of a 275.00 foot radius curve, the long chord of which bears South 450 37' 06" West 31.61 feet; thence North 470 39' 67" West 248.05 feet; thence South 370 16' 32" West 337.36 feet; thence South 22046' 38" West 236.72 feet; thence South 760 19' 04" West 654.82 ieet; thence North 770 47' 09" West 239.06 feet; thence North 60026' 29" West 231.87,feet; thence North 240 53' 54" West 335.34 feet; thence North 150 35' 2(1" West 160.03 feet; thence North 14002' 26" East 281.68 feet; thence North 750 57' 32" West 120.00 feet; thence North 14002' 26" Eest 206.00 feet; thence North 75057' 32" West 370.00 faet: thence North 14002' 28" East 320.90 feet; thence along the arc of e 369.99 foot redlus curve to the left. the chord of which bears North 60 44' 12" East 94.08; thence North 00 34' 04" West 46.04 feet; thence South 890 25' 56" West 120.00feel; thence South 720 57' 20" West 129.30te8t; thence North 49" 50' 02" Wesl 286..67 feet; thence South 40009' 58" West 226.21 teet; thence along the arc of a 250.00 foot radius curve to tha left. the long chord of which beers North 640 19' 22" West 66.30 feet; thence South 380 32' 30" West 64.34feot; thence South 8" 52' 17" West 11.48 feet; thence along the arc of a 61.01 foot radius curve to the left, the long chord of which bears South 260 48' 51" West 31.43 feet; thence South 440 45' 25" West 66.40 feet; thence along the arc of a 86.99 foot radius curve to the right, the long chord of which bears South 260 48' 61" West 53,6() feet; thence South 8052' 17" Wast 240.59 feet; thence along the erc of a 226.00 foot radius curve to the left, the long chord of which bears South 7009' 33" Eest 126.34feet; thence South 66016' 12"West 140.00 feet: thence along the arc of a 366.00 foot radius curve to the right, the long chord of which beers North 9003' 18" West 184.94 feet; thence North 61007' 43" West 110.14 feet; thence South 78006' 12" West 52.37 feet; thence North 660 29' 07" West 140.29 feet; thence along the arc of a 666.00 foot redius curve to the left, the long chord of. which bears Soulh 9034' 21" East 326.30 feet; thence South 230 43' 48" East 214.39 feet; thence South 470 33' 40" East 149.89 feet; thence South 730 46' 36" East 146.91 feet; thence South 520 02' 41" West 202.36 feet; thence North 370 35' 16" West 200.00 feet; thence North 320 41' 22" West 200.73 feet; thence North 250 66' 29" West 469.14 feet; thence North 60 23' 64" East Exhibit Page e> I . . 356.05 feet; thence North 840 36' 34" West 63.61 feet; thence North 520 05' 07" West 150.00 feet: thence North 370 54' 53" East 205,05 feet; thence North 890'12' 45" West 389.74 feet; thence South 10 31' 59" West 623.78 feet; thence along the arc of a 796.19 foot radius curve to the left, the long chord of which oears North 67" 23' 21" West 553.13 feet to a point on the centerline of 68th Stleet: thenca along said centerline South 1 0 38' 28" West 49.69 feet; thence leaving said canterline and running along the northerly right of way of Weyerhaeuser's privata roadway along the 'arc of a 746.71 foot red ius curve to the right, the long chord of which bears South 620 50' 06" East 636.11 feet; thence South 370 36' 19" East 979~83 faet; thence along tha arc of a 542.57foot'radlus curve to the left, the long chord of which bears South 52039' 49" East 2B2.23 feet; thence South South 670 44' 19" East 192.07 feet; thence along the arc of a 602.57 foot radius curve to the right, the long chord of which bears South 320 06' 19" East 702.11 faet; thence South 30 31' 41" West 291.00feet; thence leaving seld Northerly right of weySouth 68022' 34" East 1437.3B feet; thence South 1035' 59" West 396.60 feet; thance South 870 44' 49" Eest 879.75 feet to the Trua Point of Beginning, in Springfield, lene County, Oragon. EXCEPT THEREFROM: That portion deedad to a lane County In a Werranty Deed recorded August B, 2000, Reception No. 2000-045367,01lIci81 Records of lene County, Oregon. PARCEL TWO: Beginning at the Brass Cep marking the Southwest corner of the T. Meynard Donetlon lend Claim No. 44, Township 17 South, Range 2 West 01 the Willametle Meridian; run thence North 1057' 15" East 463.01 feet; thence North 680 07' 08" West 302.54 feet; thence North 20 08' 63" East 286~21 faet; thence North 880 08' 26" West 66.00 feet; thence North 89059' 53" West 72.85 feet; thence North 87045' 08" West 347.98 feet; thence North 00 47' 30" East 374.02 feet to a point on the Southarly right of way of McKenzie Highway; run thence along said right of way, North 86 001' 06" West 260.76 feet; thence leaving said right of way South 1 0 38'.26" West 660.00 feet; thence North 88007' 06" Wast 970.02 feet to the True Point of Beginning; run thence North 8Bo 07' 08" West 1 t 24.64 feet; thence South 1041' 2t" West923.37 feet; thenca North 89012' 45" Wast 14.45 feet; thence South 52" 05' 07" East 24.58 feet; thence Souih 370 54' 53" West 300.00 feet; thence South 840 36' 34" East 63.61 feet; thence South 60 23' 54" West. 366.05 feet; thence South 260 56' 29" East 469.14 feet; thence South 320 41' 22" East 200.73 feet; thence South 370 35' 18" East 200.00 feet; thence North 520 02' 41" East 202.36 feet; thance North 730 46' 36" Wast 146.91 feet; thence North 470 33' 40" West 149.69 feet; thence North 230 43' 48" West 214.39 feet; thence along the arc of a 665.00 foot radius curve to the right, the long chord of which bears North 70 25' 45" West 373.30 feat; thance North 80.62' t7" East 460.76 feet; thence North 16025' 07" East 186.22 feet; thence North 42038' 17" East 648.27 faet; thenca North 61037' 29" East 369.01 feet; thence North 570 26' 33" East 222.21 feet to the True Point of Beginning, In Springfield, lane County, Oregon. PARCEL THREE: Beginning at the Brass Cap marking the Southwest corner of the T. Maynard Donation land Clelm No. 44, Township 17 South, Range 2 West of the Wlllamette Merldlen; run thenoe North 10 67' 16" Eest 483.01 feet; thence North B80 07' 08" West 302.64 feet; thence North 20 08' 63" East 286.21 faet; thence North 680 06' 26" West 66.00feat; thence North 89059' 53" West 72.86 feet; thence North 87045' 08" West 347.98feet; thence North 00 47' 30" East 374.02 feet to e point on the Southerly right of way of McKenzie Highway; run thence along said right of way, North 66" 07' 06"Wast 260.76 feet; thence leaving said right of way South 1036' 26" West 660.00 feet; thence North 66007' 08" Wast 970.02 feet; thence South 57025' 33" West 222.21 feet; thence South 61 037' 29" West 132.75 feet to the True Point of Beginning; run thence South 1 0 3B' 08" West 161.63 feet; thance South 58021' 52" East 308.47 feet; thence South 61 023' 16" East lOt .66 feet; thenoe South 42045' 43" Eest 204.72 faet; thence along the ere of a 140.00 foot radius curve to the left, the long chord of which bears South 130 36" 13" West 66.54 feet; thance South 37026' 06" East 99.92 feet; thence South 73046' 17" East 138.77 feet; thence South 670 09' 32" East 547.55 feet; thence South 30 19' 06" West 72.16 feet; thence South 360 39' 21" West 771.62 feet; thenoe North 750 67' 32" West 370.00 feet; thence North 140 02' 28" Eest C> :2.. ExhIbIt Page . . 320.90 feet; thence along the arc of a 369.99 foot radius curve to the left, the long chord of which curve bears North 6" 44' 12" East 94.08 faet; thenca North 0" 34' 04" West 46.04 feet; thence South 890 25' 56" West 120.00 feet; thence South 72" 57' 20" West 129.30 feet; 'thence North 490 50' 02" West 266.67Ieet; thance South 40" 09' 56" West 226.21 feet; thence along the arc of a 250.00 foot mdius curva to the left, the long chord of which bears North 64019' 22" West 66.30 feet; thenca South 360 32' 30" West 54.34 feat; thence South 60 62' 17. West 11.48 feet; thence along the arc of a 61.01 foot radius curve to the left, the long chord of which bears South 260 48' 51" West 31.43 feet; thence South 44046' 25" West 66.40 feet; thence elong the arc of a 86.99 foot radius curve to' the right, the long chord of which bears South 26" 46' 51. West 63.60 feet; thence South 80 52' 17" West 240,69 feet; thence along the arc of a 225.00 foot radius curve to the left, the long chord 01 which bears South 70 09' 33" East 126.34 feet; thence South 660 16' 12" West 140.00 feet; thence along the arc of a 365.00 foot radius curve to the right, the long chord of which baars North 90 03' 16" West 184.94 feet; thence North 81 007' 43" West 110.14 feet; thence South 760 08' 12" West 52.37 feet; thence North 86029' 07" West 140.29 feet; thence along the arc of e 665.00 foot radius curve to the right, the long chord of which bears North 60 43' 41" East 49,74 feet; thence North 80 52' 17" East 460.75 feet; thence North 160 25' 07" East 185.22 feet; thence North 420 38' 17" East 646.27 feet; thenoe North 610 37' 29" East 256.25 feet to the True Point of Beginning, In Springflald, lane County, Oregon. PARCEL FOUR; Beginning at the Brass Cap marking the Southwest corner of the T. Maynard Donation Land Claim No. 44, Township 17 South, Range 2 West of the Willamette Merldlen; run 'thence North 10 57' 15" East 483.01 feet; thance North 680 07' 06" West 302.64 feet; thence North 20 08' 63" Eest 286.21 feet; thence North 88" 06' 26" West 66.00feet; thence North 89069' 53" West 72.85 feet; thence North 8]0 45' 08"West 347.98 feet; thence North 00 47' 30" East 374.02 feet to e point on the Southerly right of wey of McKen21e Highway; run thence along said right of way, North 880 07' 08" West 260.76 feel; thence leevlng seid right of way South 1038' 26" West 660.00 feet; thence North 680 07' 08" West 970.02 feet; thence South 57026' 33" West 222.21 feet; thence South 61037' 29" West 132.75 feet; thence South 1036' 08" West 161.,63Ieet; thence South 580 21' 52" East 308.47 feet; thence South 610 23' 16" Eest 101.56 feel; thence South 420 45' 43" Eest 204.72 feet; thence elong the arc of a 140.00 foot radius curve to the left, the long chord of which bears South 130 36' 12" West 68.54 feet; thance South 3]0 28' 06" East 99.92 feet; thence South 730 45' 17" East 136.77 feet; thence South 870 09' 32" East 547.65 feet; thence South 30 19' 06" West 72.16 feat to the True Point of Beginning; thence South 360 39' 2,. West 771.82 feet; thence South 14" 02' 26" West 208.00 feet; thence South 750 67' 32" East 120.00 feet; thence South 140 02' 28",West 281.68 feet; thence South 150 35' 26" East 180.03 feet; thence South 240 53' 54" East 336.34 feet; thence South 500 25' 29" East 231.87 feet; thence South 770 47' 09" ~est 239.06 feet; thence North 76019' 04" Eest 664.82 feet; thence North 220 45' 38" East 236.72 feet; thence North 370 15' 32" East 337.36 faet; thence North 370 16' 32" East 342.39 feet; thence North 130 17' 28" East 196.36 feet; thence North 410 46' 21" East 174.09 feat; thence North 60 68' 6t" Eest 75.67 feet; thence North 460 36' 24" Was't 189.36 feet; thence North 450 35' 29" Eest 135.64 feet; thence along the arc of a 225.00 foot radius curve to the right, the long chord of which bears Noith 61 0 10' 19" West 125.34 feet; thence South 55" 29' 32" West 182.62 feet; thence North 41 017' 19" West4t7.61 feet; thence North 560 02' 20" West 161.40 feet; thence North 86014' 33" West 146.96 feet; thence South 690 43' 24" West 60.92 feet; thence South 770 67' 10" Wast 284.96 faet; thence South 600 04' 49" WesI 255.33 feet to the True Point of Beginning, In Springfield, lane County, Oregon. exhibit ~ Page ~ . . r.~---"""---' , i~ -JJ ~o ,t ~: ~I 11 < ~ ~ ~ ". .u .. 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