Resolution No. 12-30 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 12- 30
A RESOLUTION AUTHORIZING AN ASSIGNMENT AGREEMENT WITH METRO AND THE
PURCHASE OF THE FIELDS PROPERTY (TAX LOT 2S1010001200) AND AUTHORIZING THE
CITY MANAGER TO TAKE ALL NECESSARY ACTION TO COMPLETE THE PROPERTY
PURCHASE ON BEHALF OF THE CITY
WHEREAS,in November 2010 Tigard voters passed a$17 million park bond measure whereby 80 percent of
bond proceeds were dedicated to acquiring open space and park land such as the Fields property;and
WHEREAS, the Park and Recreation Advisory Board (DRAB) was tasked with evaluating more than 60
potential park properties,and the Fields property ranked high on the acquisition list;and
WHEREAS,the city would like to acquire the property for use as both a park and open space;and
WHEREAS, Metro entered into a purchase and sale agreement (Exhibit A) with representatives of the Fields
estate and can purchase the property for$5.15 million;and
WHEREAS, Metro's purchase and sale agreement is contingent upon Tigard contributing $2 million to the
property purchase.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City Council agrees to the terms of the Partial Assignment Agreement of Purchase and
Sale Agreement (Exhibit B) whereby the Tigard commits $2 million toward the purchase of
the Fields property,and Tigard obtains joint ownership in the property.
SECTION 2: In accordance with the Partial Assignment Agreement of Purchase and Sale Agreement, the
City Council agrees to develop an intergovernmental agreement with Metro regarding the
management of the Fields property.
SECTION 3: The City Council authorizes the city manager to take all necessary action to complete the
Fields property purchase on behalf of the city. This includes,but is not limited to, execution
of the Partial Assignment Agreement of Purchase and Sale Agreement and closing
documents.
SECTION 4: This resolution is effective immediately upon passage.
_f�_
PASSED: This day of 2012.
RESOLUTION NO. 12- SC
Page 1
yor-City of Tigard
ATTEST:
f `
City Recorder-City of Tigard
RESOLUTION NO. 12- 3C
Page 2
EXHIBIT A
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT(this"Aarreement")is made and entered into as
of the last date of signature indicated below(the"Effective Date"),by and between William R.Tagmyer,
trustee of the Fred W. Fields Revocable Living Trust("Seller"), and Metro,an Oregon municipal
corporation("Purchaser").
RECITALS
A. Seller is the owner of approximately 25 acres of real property,together with all the improvements
thereon and all rights appurtenant thereto(including but not limited to access rights,timber rights,water
rights,grazing rights,development rights and mineral rights),located in the City of Tigard,County of
Washington, State of Oregon,commonly known as Tax Parcel 1200(80456081)in Section 1 of
Township 2 South,Range 1 West of the Willamette Meridian,and more particularly described on the
attached Exhibit A (the"Pro e ").
B. Purchaser desires to purchase from Seller, and Seller desires to sell and convey to Purchaser, all right,
title and interest in the Property.
C. The terms of this Agreement are as follows:
TERMS
1. Purchase and Sale. Seller agrees to sell and convey to Purchaser,and Purchaser agrees to purchase
from Seller,the Property upon the terms and conditions set forth below in this Agreement.
2. Purchase Price. The Purchase Price for the Property is FIVE MILLION ONE HUNDRED FIFTY
THOUSAND DOLLARS($5,150,000).
2.1. Earnest Money. Within ten(10)days after execution of both this Agreement and the
Memorandum described in Section 21.1,Purchaser shall deposit into escrow with WFG National Title
Insurance Company(the"Title Company")the sum of$50,000.00(the"Earnest Money"). If the Earnest
Money is retained by Seller, Seller will receive any interest earned thereon. If the Earnest Money is
retained by Purchaser, Purchaser will receive the interest earned thereon. The term"Earnest Money"
shall include all interest earned thereon. At Closing,the Earnest Money will be credited toward payment
of the Purchase Price.
2.2. Balance of Purchase Price. On or before the Closing Date(as hereafter defined),Purchaser shall
deposit into escrow with the Title Company the balance of the Purchase Price.
2.3. Just Compensation. The parties acknowledge that the Purchase Price is equal to the fair market
value of the Property,as determined by an independent MAI appraisal subject to no extraordinary
assumptions and based on the highest and best use of the Property(the"Appraisal"). The appraiser, in
determining the market value,took into account the access issues discussed in Section 9 of this
Agreement. The Appraisal was paid for by Purchaser and completed in accordance with current Uniform
Standards of Professional Appraisal Practice,with the Oregon Department of Transportation's Guide to
Appraising Real Property, and with generally accepted appraisal standards. Seller has received and
reviewed a copy of the completed Appraisal from Purchaser. Seller acknowledges that it was given a
forty-day period to object to the analysis and opinion of value included in such Appraisal. By execution
of this Agreement, Seller hereby approves of the Appraisal,agrees that the Purchase Price is just
compensation for the sale of the Property to Purchaser, and documents its desire to willingly proceed with
the Closing of the transaction contemplated herein.
Page 1 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
3. Closing Date. This transaction shall close no later than ninety(90)days after the Effective Date of
this Agreement,or on such other date that the parties agree upon in writing(the"Closing Date"or
"Closing"). Closing will occur at the office of WFG National Title Insurance Company, located at 25
NW 23` Place, Suite 1,Portland,Oregon, 97210.
4. Purchaser's Title Review.
4.1. Title Report, Unacceptable Exceptions. Seller has provided Purchaser with a preliminary title
report on the Property from the Title Company,along with legible copies of all plats and exceptions
documents referenced in such report(the"Title Report"). Purchaser will have thirty(30)days following
the Effective Date to review the Title Report and give Seller written notice of the exceptions listed in the
Title Report that are unacceptable to Purchaser(the"Unacceptable Exceptions"). Mortgages,delinquent
taxes,or other financial obligations secured by the Property are automatically deemed Unacceptable
Exceptions. If Purchaser notifies Seller of any Unacceptable Exceptions, Seller will thereafter have ten
(10)days to give Purchaser written notice that Seller will remove the Unacceptable Exceptions from title
to the Property at or prior to Closing(at Seller's sole cost and expense)or that Seller will not remove the
Unacceptable Exceptions. Seller's failure to deliver such notice shall be deemed to mean that Seller will
remove the Unacceptable Exceptions. If Seller elects not to remove any of the Unacceptable Exceptions
and Purchaser is not then satisfied with the condition of title,Purchaser may elect to terminate this
Agreement by written notice to Seller, in which event the Earnest Money shall be returned to Purchaser
by the Title Company.
4.2. Failure to Deliver Clean Title at Closing. If Seller fails to eliminate any Unacceptable
Exception by the Closing Date,then Purchaser may,without limiting any of its otherwise available
remedies,elect to either(a)accept title to the Property subject to such exceptions,(b)refuse to accept the
Property and terminate this Agreement, in which case the Earnest Money shall be refunded to Purchaser
by the Title Company,or(c)extend the Closing Date for a period of thirty(30)days to provide Seller
with additional time to remove such exceptions. If Purchaser elects option(c)and at the end of the 30-
day period such exceptions have not been removed,Purchaser may then elect to proceed in accordance
with either option(a)or(b)described above. To the extent that an Unacceptable Exception is a monetary
lien or financial obligation secured by the Property,the Title Company is hereby directed to pay off such
lien or obligation to the extent that it can be satisfied by application of all or a portion of the Purchase
Price delivered into escrow by Purchaser at Closing.
4.3. Permitted Exceptions. All exceptions other than the Unacceptable Exceptions shall be deemed
acceptable to Purchaser(the"Permitted Exceptions");provided,however,that in no event will mortgages,
delinquent taxes,or other financial obligations secured by the Property be deemed Permitted Exceptions.
Should the Title Company inform Purchaser of any new title exceptions not appearing on the initial Title
Report, such new exceptions shall be deemed Unacceptable Exceptions,unless specifically accepted in
writing by Purchaser.
5. Purchaser's Due Diligence and Inspections.
5.1. Seller's Delivery of Documents. Within ten(10)days after the Effective Date, Seller shall
deliver to Purchaser any and all material information and documentation in Seller's possession or control
pertaining to the Property(the"Due Diligence Documents'). The Due Diligence Documents include
(without limitation)copies of(a)all environmental data,studies,analyses,and reports relating to the
Property or any neighboring property,(b)any existing survey of the Properly,(c)any existing leases,
boundary agreements,road maintenance agreements,or other contracts relating to all or a portion of the
Property,(d)all topographical,geotechnical,wetlands,soils,and groundwater reports,or any other
professional reports relating to the Property,(e)any well logs or water right certificates or permits
relating to the Property,and (f)copies of any government permits, land use approvals or conditions, or
zoning restrictions affecting the Property. If Seller is aware of the existence of any material information
Page 2 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
or documentation pertaining to the Property that is not in Seller's possession or control, Seller shall notify
Purchaser of the existence of such information within ten(10)days after the Effective Date or two(2)
business days after learning of such information. Should Seller fail to timely provide Purchaser with any
Due Diligence Documents,Purchaser may,at Purchaser's sole discretion,extend the Closing Date for a
period not to exceed twenty(20)days so that Purchaser may have adequate time to review such additional
documentation.
5.2. Property and Environmental Inspections. Purchaser and its agents, including but not limited to
consultants,surveyors,engineers,home inspectors, appraisers,and other professionals hired by
Purchaser, shall have the right to access the Property to conduct environmental studies(including Phase I
and Phase H Environmental Site Assessments), structural inspections, sewer and septic system sampling,
asbestos and lead testing,and any other due diligence Purchaser deems necessary or desirable. Seller
shall cooperate with Purchaser in making such inspections. Purchaser and its agents will have the right to
enter the Property at reasonable times before Closing to perform such surveys,analyses,studies,
appraisals,and other due diligence that Purchaser deems necessary or desirable. Any area disturbed by
Purchaser's inspections shall be restored by Purchaser,at Purchaser's sole costs and expense,to
substantially its pre-inspection condition.
6. Conditions Precedent to Closing.
6.1. Conditions Precedent to Purchaser's Obli ations. In addition to any other conditions contained
in this Agreement,the conditions set forth in this Section 6.1 are conditions precedent to Purchaser's
obligation to complete the transaction provided for in this Agreement,and must be satisfied or waived in
writing prior to Purchaser's obligation to acquire the Property. These conditions are intended solely for
Purchaser's benefit and Purchaser has the sole right and discretion to waive, by written notice,any of the
conditions. In the event any condition is not satisfied or waived on or before Closing,Purchaser will have
the right to terminate this Agreement, in which event the Earnest Money shall promptly be returned to
Purchaser by the Title Company.
6.1.1. Due Diligence and Inspection Results. Purchaser must be satisfied, in its sole and
absolute discretion,with its review of the Due Diligence Documents,the Property,and the results of
Purchaser's inspections of the Property conducted under Section 5.2 above. If Purchaser gives notice to
Seller prior to the Closing Date that Purchaser is not satisfied with the Property due to the results of its
due diligence and inspections under Section 5,the Closing Date will be automatically extended for a
period of up to thirty(30)days so that Seller and Purchaser may address such results. If at the end of the
30-day period,Purchaser and Seller have not reached an agreement regarding the issues disclosed as a
result of such due diligence and inspections,then this Agreement will automatically terminate and the
Earnest Money shall be refunded to Purchaser.
6.1.2. Title. At Closing(a) Seller shall convey fee simple title to the Property to Purchaser in
accordance with Section 7.1.1,and(b) Seller shall have caused the Title Company to be committed to
issue to Purchaser the Title Policy described below in Section 9.
6.1.3. City of Tigard Funding Contribution. Closing is conditioned upon Purchaser receiving
purchase funds from the City of Tigard in the amount of$2,000,000. This condition must be satisfied or
waived by Purchaser in writing no later than August 1,2012. If Purchaser does not notify Seller that this
condition has been satisfied or waived on or before August 1,2012,then Purchaser shall be deemed to
have terminated this Agreement and the Title Company shall return the Earnest Money to Purchaser.
6.1.4. Representations, Warranties, and Covenants of Seller. Seller shall have performed all of
its obligations hereunder,and Seller's representations and warranties set forth in this Agreement shall be
true,complete and correct as of the Effective Date and as of the Closing Date,
Page 3 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
6.1.5. No Material Changes. At Closing, there shall have been no material adverse changes
related to or connected with the Property.
6.1.6. Seller's Deliveries. Seller shall have timely delivered each item to be delivered by Seller
pursuant to this Agreement,including(without limitation)the documents and materials described below
in Section 7.1.
6.1.7. Removal of Personal Property and Debris. Prior to Closing, Seller shall have removed or
have caused to be removed from the Property,at Seller's sole cost and expense,any and all personal
property and/or trash,rubbish, debris, illegally dumped materials or illegal fill materials.
6.2. Conditions Precedent to Seller's Obligations. Closing and Seller's obligations with respect to
the transactions contemplated by this Agreement are subject to Purchaser's delivery to the Title Company
on or before the Closing Date of(i)the Purchase Price and(ii)the documents and materials described
below in Section 7.2.
6.3. Cancellation Fees and Expenses. In the event the escrow terminates because of the failure of
any condition for a reason other than the default of Seller under this Agreement,Purchaser shall pay the
cancellation charges required to be paid to the Title Company. Iii the event this escrow terminates
because of Seller's default, Seller shall pay the cancellation charges required to be paid to the Title
Company.
7. Deliveries to the Title Company.
7.1. B, Sy eller. On or before the Closing Date, Seller shall deliver the following into escrow with
the Title Company:
7.1.1. Deed. A Statutory Warranty Deed(the"Deed"),duly executed and acknowledged in
recordable form by Seller,conveying the Property to Purchaser fiee and clear of all liens and
encumbrances except the Permitted Exceptions accepted by Purchaser pursuant to Section 4 above. The
Title Company's usual,preprinted exceptions(typically listed as general exceptions 1 through 5 on the
Title Report)shall not be listed as exceptions on the Deed.
7.1.2. Proof of Authority. Such proof of Seller's authority to enter into this Agreement and
consummate the transaction contemplated hereunder,as may be reasonably required by the Title
Company and/or Purchaser.
7.1.3. Lien Affidavits. Any lien affidavits or mechanic's lien indemnifications as may be
reasonably requested by the Title Company in order to issue the Title Policy.
7.1.4. Other Documents. Such other fully executed documents and funds as are required of
Seller to close the sale in accordance with this Agreement, including(without limitation)escrow
instructions.
7.2. By Purchaser. On or before the Closing Date,Purchaser shall deliver the following into escrow
with the Title Company.
7.2.1. Purchase Price. The Purchase Price,in accordance with Section 2 above.
7.2.2. Proof of Authority. Such proof of Purchaser's authority to enter into this Agreement and
consummate the transaction contemplated hereunder,as may be reasonably required by the Title
Company and/or Seller.
7.2.3. Deed._An executed and acknowledged,acceptance of the Deed.
Page 4 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
7.2.4. Other Documents. Such other fully executed documents and funds as are required of
Purchaser to close the sale in accordance with this Agreement, including(without limitation)escrow
instructions.
8. Deliveries to Purchaser at Closing. At Closing, Seller shall deliver to Purchaser exclusive.
possession of the Property.
9. Title Insurance. At Closing, Seller shall cause the Title Company to issue to Purchaser a standard
ALTA owner's title insurance policy in the full amount of the Purchase Price, insuring fee simple title
vested in Purchaser or its nominees,subject only to the Permitted Exceptions as established under Section
4 of this Agreement(the"Title Policy"). Purchaser acknowledges that access to the Property is via an
easement granted by the City of Tigard over an extension of Wall Street and subject to construction of a
bridge that crosses Fanno Creek. The Purchase Price includes a deduction fiom fair market value of the
estimated cost of constructing the bridge. At Purchaser's option,Purchaser may elect to have the Title
Policy issued with endorsements and/or in an ALTA extended coverage form,provided that Purchaser
pays any additional associated costs associated with extended coverage.
10. Closing Costs. Seller shall pay for the Title Policy,one-half of all escrow fees,any real property
transfer or excise taxes, all recording charges other than those allocated to Purchaser below,and Seller's
share of prorations pursuant to Section 11 below. Purchaser shall pay the cost of recording the Deed, one-
half of all escrow fees, if requested by Purchaser,the cost of any extended coverage and endorsements for
the Title Policy,and Purchaser's share of prorations pursuant to Section 11 below. Purchaser and Seller
each shall pay for its own legal and professional fees incurred. All other costs and expenses are to be
allocated between Purchaser and Seller in accordance with the customary practice in the county where the
Property is located.
11. Prorations and Taxes.
11.1. Prorations. Any and all state,county,and/or city taxes for the current year,rents,or other
income or operating expenses pertaining to the Property will be prorated between Seller and Purchaser as
of the Closing Date.
11.2. Taxes and Assessments. All taxes,assessments,and encumbrances that will be a lien against
the Property at Closing shall be satisfied by Seller at Closing. If Seller shall fail to do so,Purchaser may
pay any such tax, assessment,encumbrance or other charge and deduct an amount equal to any such
payment from the Purchase Price. If the Property is subject to farm or forest deferred taxes, Seller will
have no obligation or responsibility for said deferred taxes,unless the Property becomes disqualified for
or loses its deferred tax status as a result of Seller's actions prior to Closing in which case such taxes shall
be Seller's responsibility.
12. Seller's Representations and Warranties. Seller hereby warrants and represents to Purchaser the
following matters, and acknowledges that they are material inducements to Purchaser to enter into this
Agreement. Seller agrees to indemnify,defend,and hold Purchaser harmless from all expense,loss,
liability,damages and claims, including(without limitation)attorney's fees, arising out of the breach or
falsity of any of Seller's representations,warranties,and covenants,which indemnity shall survive the
Closing. These representations and warranties shall survive Closing. Seller warrants and represents to
Purchaser that the following matters are true and correct,and will remain true and correct through
Closing:
12.1. Authors . Seller has full power and authority to enter into this Agreement(and the persons
signing this Agreement for Seller, if Seller is not an individual,have full power and authority to sign for
Seller and to bind it to this Agreement)and to sell,transfer and convey all right,title,and interest in and
Page 5 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
to the Property in accordance with this Agreement. No further consent of any partner, shareholder,
creditor, investor,judicial or administrative body,governmental authority, or other party is required.
12.2. Unrestricted Access. The Property has access to a public road over an easement granted by the
City of Tigard that crosses Fanno Creek.
12.3. Minimum Acreaae: To Seller's knowledge,the Property is approximately 25 acres in size.
12.4. Hazardous Substances. For purposes of this Agreement,the term"Hazardous Substances"has
the meaning defined in and includes those substances set forth in ORS 465.200. Seller warrants and
represents as follows:
(a) To Seller's knowledge,there are no Hazardous Substances in,upon,or buried on or beneath
the Property and no Hazardous Substances have been emitted or released from the Property in violation of
any environmental laws of the federal or state government;
(b) Seller has not brought onto,stored on,buried,used on,emitted or released from,or allowed
to be brought onto,stored on,buried,used on,emitted,released from,or produced or disposed of, from,
or on the Property,any Hazardous Substances in violation of any environmental laws of the federal or
state government;
(c) To Seller's knowledge,no underground storage tanks are located on the Property, including
(without limitation)any storage tanks that may have at one time contained any Hazardous Substances;
(d) To Seller's knowledge,the Property is materially in compliance with applicable state and
federal environmental standards and requirements affecting it;
(e) Seller has not received any notices of violation or advisory action by regulatory agencies
regarding environmental control matters or permit compliance with respect to the Property;
(f) Seller has not transferred,and to Seller's knowledge no other person has transferred,
Hazardous Substances from the Property to another location that is not in compliance with applicable
environmental laws,regulations,or permit requirements;and
(g) There are no proceedings,administrative actions,or judicial proceedings pending or,to
Seller's knowledge,contemplated under any federal, state, or local laws regulating the discharge of
hazardous or toxic materials or substances into the environment.
12.5. Encroachments. To Seller's knowledge(a)all structures and improvements, including any
driveways and accessory structures, are wholly within the lot lines of the Property,(b)no existing
building, structure, or improvement of any kind encroaches upon the Property from any adjacent property,
and(c)there are no present or past discrepancies or disputes regarding the boundaries of the Property.
12.6. Rights and Contracts Affecting Property. Except for this Agreement, 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. Except for those exceptions of record listed on the Title Report, Seller owns the
Property in fee,free and clear of all liens,conditions,reservations,mortgages, leases, licenses,easements,
prescriptive rights,pen-nits,or other similar encumbrances. Seller has not sold,transferred,conveyed,or
entered into any agreement regarding timber rights,mineral rights,water rights,"air rights,"or any other
development or other rights or restrictions relating to the Property,and to Seller's knowledge no such
rights encumber the Property. There are no service contracts or other agreements pertaining to the
Property that will bind the Property or Purchaser on or after the Closing.
Page 6 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
12.7. Possession. Except as specifically set forth in this Agreement,there are no leases, licenses,or
other agreements permitting,nor has Seller entered into any course of conduct that would permit,any
person or entity to occupy or use any portion of the Property. Seller shall deliver immediate and
exclusive possession of the entire Property to Purchaser at Closing.
12.8. Reforestation. The Property is not subject to any pending or delinquent reforestation
requirements and Seller has complied with all applicable reforestation requirements. In accordance with
Section 5, Seller shall deliver copies of any notices,agreements,or other documents related to past,
present,or future reforestation of the Property.
12.9. Recitals. The statements and information set forth in the Recitals are true and correct.
12.10. No Legal Proceedings. There is no suit,action,arbitration,judgment, legal,administrative,
or other proceeding,claim, lien,or inquiry pending or threatened against the Property or against Seller
(nor is there any basis for any such proceeding)that could(a)affect Seller's right or title to the Property,
(b)affect the value of the Property,or(c)subject an owner of the Property to liability.
12.11. Mechanic's and Other Liens. No work on the Property has been done or materials provided
that would give rise to actual or impending mechanic's liens,private liens,or any other liens,against the
Property.
12.12. Public Improvements or Governmental Notices. To Seller's knowledge,there are no
intended public improvements which will result in the creation of any liens upon the Property,nor have
any notices or other information been served upon Seller from any governmental agency notifying Seller
of any violations of law,ordinance,rule or regulation which would affect the Property.
12.13. Breach of Agreements. The execution of this Agreement will not constitute a breach or
default under any agreement to which Seller is bound or to which the Property is subject.
12.14. Bankruptcy Proceedings. No attachments,execution proceedings,assignments for the benefit
of creditors,insolvency, bankruptcy,reorganization,or other proceedings are pending or,to Seller's
knowledge,threatened against Seller,nor are any such proceedings contemplated by Seller.
12.15. PATRIOT Act. Neither Seller nor,to Seller's knowledge,any person having a direct or
indirect beneficial interest in Seller(nor any principal,officer,or director of the foregoing),(a)appears on
the Specially Designated Nationals and Blocked Person List or similar list prepared or maintained by the
Office of Foreign Assets Control of the United States Department of the Treasury and none of the
foregoing is a Senior Foreign Political Figure or Prohibited Foreign Shell Bank(as such terms are defined
in the PATRIOT Act(Public Law 107-56)),(b)is a person with whom a United States citizen is
prohibited from transacting business under any U.S. law,regulation or Executive Order,or(c)is engaging
in or conspiring to engage in any transaction that evades or avoids,or has the purpose of evading or
avoiding, or attempting to violate,any of the prohibitions set forth in any U.S. anti-money laundering law.
12.16. Changed Conditions. If Seller discovers any information or facts that would materially
change the foregoing warranties and representations, Seller shall immediately give notice to Purchaser of
those facts and information. If any of the foregoing warranties and representations cease to be true before
Closing, Seller shall use its best efforts to remedy the problem,at its sole expense,before Closing. If the
problem is not remedied before Closing,Purchaser may elect to either: (a)terminate this Agreement, in
which case Purchaser will have no obligation to purchase the Property and the Earnest Money shall be
refunded to Purchaser,or(b)extend the Closing Date for a period not to exceed forty-five(45)days or
until such problem has been remedied,whichever occurs first. Should Purchaser extend the Closing Date
and the problem is not remedied within the 45-day timeframe, Purchaser may then elect to terminate this
Agreement and receive a refund of its Earnest Money;provided,however,that such election will not
Page 7 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
constitute a waiver of Purchaser's rights in regard to any loss or liability suffered as a result of a
representation or warranty not being true,nor will it constitute a waiver of any other remedies provided in
this Agreement or by law or equity.
13. Condition of the Property Through Closing. Seller shall(a)maintain the Property in substantially
the same condition as it was on the Effective Date,with no tree cutting,timber harvesting,or alteration of
the Property in any way,(b)keep all existing insurance policies affecting the Property in full force and
effect,(c)make all regular payments of interest and principal on any existing financing, (d)pay all real
property taxes and assessments against the Property prior to delinquency,(e)comply with all government
regulations, and(f)keep Purchaser timely advised of any repair or improvement required to keep the
Property in substantially the same condition as it was on the Effective Date.
14. No Further Encumbrances. As long as this Agreement remains in force, Seller shall not lease,
transfer, option,mortgage, pledge,or convey its interest in the Property or any portion thereof or right
therein,nor shall Seller enter into any agreement granting to any person or entity any option to purchase
or rights superior to Purchaser with respect to the Property or any part thereof.
15. Purchaser's Representations and Warranties. In addition to any express agreements of Purchaser
contained herein,the following constitute representations and warranties of Purchaser to Seller:
(a) Subject to the conditions stated herein,Purchaser has the legal power,right, and authority to enter
into this Agreement and the instruments referred to herein and to consummate the transactions
contemplated herein;
(b) Subject to the conditions stated herein,all requisite action has been taken by Purchaser in
connection with entering into this Agreement and the instruments referred to herein and the
consummation of the transactions contemplated herein; and
(c) Subject to the conditions stated herein,the persons executing this Agreement and the instruments
referred to herein on behalf of Purchaser have the legal power,right,and actual authority to bind
Purchaser to the terms and conditions of this Agreement.
16. Legal and Equitable Enforcement of This Agreement.
16.1. Default by Seller. In the event Closing and the consummation of the transaction herein
contemplated do not occur by reason of any default by Seller,Purchaser shall be entitled to immediate
reimbursement of all its out-of-pocket expenses incurred in connection with the transaction, including the
Earnest Money, and will have the right to pursue any other remedy available to it at law or equity,
including the specific performance of this Agreement.
16.2. Default by Purchaser. In the event Closing and the consummation of the transaction herein
contemplated do not occur by reason of any default by Purchaser,Purchaser and Seller agree that it would
be impractical and extremely difficult to estimate the damages that Seller may suffer. Therefore,
Purchaser and Seller agree that a reasonable estimate of the total net detriment that Seller would suffer in
the event that Purchaser defaults and fails to complete the purchase of the Property is and will be an
amount equal to the Earnest Money. This amount shall be Seller's sole and exclusive remedy(whether at
law or in equity),and the full,agreed,and liquidated damages for the breach of this Agreement by
Purchaser. The payment of said amount as liquidated damages is not intended as a forfeiture or penalty.
All other claims to damage or other remedies are hereby expressly waived by Seller. Upon a termination
due to a default by Purchaser,this Agreement will terminate and except as set forth in this section,neither
party will have any further rights or obligations hereunder or to one another.
Page 8 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
17. Risk of Loss,Condemnation. Seller bears the risk of all loss or damage to the Property from all
causes, through the Closing Date. If, before the Closing Date,all or any part of the Property is damaged,
destroyed, condemned,or threatened with condemnation, Seller shall give Purchaser written notice of
such event. Purchaser may terminate this Agreement by giving written notice to Seller within fifteen(15)
days following receipt by Purchaser of written notice from Seller of such casualty or condemnation and
the Title Company shall return the Earnest Money.:to Purchaser. hi lieu of terminating this Agreement,
Purchaser may elect to complete Closing of the transaction, in which case Seller shall be deemed to have
assigned to Purchaser all Seller's rights under Seller's insurance policies, including(without limitation)
all insurance proceeds.
18. Notices. All notices required or permitted to be given must be in writing to the address set forth
below and will be deemed given upon(a)personal service,(b)deposit in the United States Mail,postage
prepaid, or(c)deposit with a nationally recognized overnight courier service. All such notices shall be
deemed received(x)upon personal service,(y)three(3)days after deposit in the United States Mail,
postage prepaid,or(z)one(1)day after deposit with a nationally recognized overnight courier service.
To Seller: William R. Tagmyer
c/o Richard A. Canaday
Miller Nash LLP
111 S.W.Fifth Avenue, Suite 3500
Portland,Oregon 97204
Fax No. (503 )205-8520
Phone No. (503)205-2512
To Purchaser: Metro Natural Areas Program Director
600 NE Grand Avenue
Portland,Oregon 97232-2736
Fax No. (503) 797-1849
Phone No. (503)797-1948
Copy to: Office of Metro Attorney
600 NE Grand Avenue
Portland,Oregon 97232-2736
Fax No. (503)797-1792
Phone No. (503) 813-7522
The foregoing addresses may be changed by written notice,given in the same manner. Notice given in
any manner other than the manners set forth above will be effective when received by the party for whom
it is intended. Telephone,email,and fax numbers are for information only.
19. No Broker or Commission. Seller has engaged NAI Norris,Beggs& Simpson(`Broker")to
represent Seller and Seller shall be solely responsible for all commissions and fees owed to Broker. Each
party represents and warrants to the other that it has not used or engaged any other real estate broker in
connection with this Agreement or the transaction contemplated by this Agreement. In the event any
person or entity asserts a claim for a broker's commission or finder's fee against one of the parties to this
Agreement,then Seller shall indemnify,hold harmless,and defend Purchaser from and against any such
claim if based on any action,agreement,or representations made by Seller; and Purchaser shall
indemnify,hold hannless,and defend Seller from and against any such claim if based on any action,
agreement,or representations made by Purchaser.
20. Further Actions of Purchaser and Seller. Purchaser 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
Page 9 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
consummate the purchase and sale contemplated and both parties shall use their best efforts to accomplish
Closing in accordance with the provisions hereof.
21. Miscellaneous.
21.1. Recording of Memorandum. On the Effective Date the parties shall execute a memorandum
of this Agreement(the"Memorandum"),which Purchaser may cause to be recorded against the Property.
21.2. Partial Invalidity. If any term or provision of this Agreement or the application to any person
or circumstance is,to any extent, found 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,will not be affected thereby, and each such term and provision of this
Agreement will be valid and be enforced to the fullest extent permitted by law.
21.3. Waivers. No waiver of any breach of any covenant or provision contained herein will be
deemed a waiver of any preceding or succeeding breach thereof,or of any other covenant or provision
herein contained. No extension of time for performance of any obligation or act will be deemed an
extension of the time for performance of any other obligation or act.
21.4. Survival of Representations. The covenants,agreements,representations,and warranties
made herein shall survive Closing and will not merge into the Deed.
21.5. Successors and Assigns. This Agreement will be binding on and will inure to the benefit of
the successors and assigns of the parties to it. Purchaser may assign all or any portion of its interest in
this Agreement to a park-providing entity without the consent of Seller. If an assignee assumes all the
obligations of Purchaser hereunder,then Purchaser shall have no further liability with respect to this
Agreement. If an assignee assumes only a portion of Purchaser's obligations hereunder,then Purchaser
and the assignee shall be jointly and severally liable for performance of Purchaser's obligations.
21.6. Representation. This Agreement was prepared by Purchaser. Seller represents that Seller had
an opportunity to consult with its own legal counsel prior to executing this Agreement. Seller waives any
claim that any term or condition herein should be construed against the drafter of the Agreement. This
Agreement shall be construed as if it had been prepared by both parties.
21.7. 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. This Agreement may not be
modified 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
herein.
21.8. Time of Essence. Seller and Purchaser hereby acknowledge and agree that time is strictly of
the essence with respect to every term,condition,obligation,and provision contained in this Agreement.
Unless otherwise specified herein, in computing any period of time described in this Agreement,
whenever a date for an action required to be performed falls on a Saturday, Sunday, or a state or federal
holiday,then such date shall be extended to the following business day.
21.9. Recitals. The statements and information set forth in the Recitals are hereby incorporated as
if fully set forth herein and shall be used for the purposes of interpreting this Agreement.
21.10. Governing I,aw. The parties acknowledge that this Agreement has been negotiated and
entered into in the state of Oregon. The parties expressly agree that this Agreement is governed by and
should be interpreted in accordance with the laws of the state of Oregon.
Page 10 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
21.11. Attorne s Fees. If any action is instituted between Seller and Purchaser in connection with
this Agreement,the party prevailing in such action shall be entitled to recover from the other party all of
its costs of action, including, without limitation,attorneys' fees and costs as fixed by the court therein.
21.12. Counterparts;Facsimile Execution. This Agreement may be executed in counterparts, each
of which,when taken together, shall constitute fully executed originals. Facsimile or e-mail signatures
shall operate as original signatures with respect to this Agreement.
21.13. Statutory Disclaimer. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT
BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS
SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES,
MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT
LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL
ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT,THE PERSON
TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS,IF ANY,
UNDER ORS 195.300, 195.301,AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,CHAPTER 424,
OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17,CHAPTER 855,OREGON LAWS 2009,AND
SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING
THIS INSTRUMENT,THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY
THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR
PARCEL,AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE
LOT OR PARCEL,TO.VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES
AND 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 executed this Agreement effective as of the last date of
signature specified below.
Purchaser: Seller:
METRO
By:
Name: /t �7i ti �, �e h n B f f- William R.Tagmyer,tr stee o the Fred W.Fields
C , , Revocable Living Trust
Title: �/` 1Sh D ' cj- /
�Z Date:
Date: -
i
Page 11 Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
Exhibit A
Property,Legal Description
Beginning at an iron pipe at the reentrant corner on the South line of the W.W. Graham Donation Land
Claim No. 39, in Township 2 South, Range 1 West of the Willamette Meridian, in the City of Tigard,
County of Washington and State of Oregon and running thence North 1°27' East 1020.7 feet to a square
iron at the Northeast corner of EDGEWOOD;thence North 89°07'West along the North line of said
subdivision 151.1 feet to a corner of that certain tract of land conveyed to Rudolph Hunziker and Sophia
G. Hunziker by Deed as recorded January 30, 1912 in Book 90, page 271; thence North 4113'East along
the property line 597.1 feet to the Southwest corner of that certain tract of land conveyed to the Oregon
Electric Railway Company by Deed as recorded in Deed recorded May 17, 1909 in Book 83, page 163;
thence South 43044' East along the Southerly line of said tract of land 400.0 feet to the most Easterly.
corner thereof;thence South 411135' East along the Southerly boundary of the Oregon Electric Railroad
right of way 1737.57 feet to an iron pipe on the South line of the said W.W. Graham Donation Land Claim,
also being the North line of Government Lot 5 in Section 1, Township 2 South, Range 1 West of the
Willamette Meridian; thence North 88°43'West 1349.96 along the South line of said W.W. Graham
Donation Land Claim and the North line of Government Lot 5 and Government Lot 6 of in Section 1,
Township 2 South, Range 1 West to the place of beginning.
TOGETHER WITH easement for ingress and egress as granted in Grant of Easement recorded February
22, 2006, Recording No. 2006-020491, described as follows:
Located in a tract of land situated in the Southeast one-quarter of Section 2, Township 2 South, Range 1
West of the Willamette Meridian, City of Tigard,Washington County, Oregon. The Easement is described
as follows:
Commencing at the 5/8"iron rod with yellow plastic cap marked DEHAAS&ASSOC. INC. set at the
intersection of the Easterly right-of-way of SW Hall Blvd 30 feet from center line,with the South line of Lot
1, EDGEWOOD as shown on Survey No. 29031 of the Washington County Survey Records; thence
South 87027' East, along said South line, a distance of 291.15 feet; thence North 75°44'01" East a
distance of 47.71 feet to the True Point of Beginning and point of curve of a curve to the left; thence along
said curve to the left with a radius of 479.00 feet, a central angle of 13139'17"(a chord which bears North
68054'23" East 113.89)and a length of 114.16 feet;thence North 52104'44" East a distance of 472.50 feet
to the East line of Lot 1 EDGEWOOD; thence North 0205219"East, along said East line, a distance of
43.09 feet to a 5/8" iron rod with yellow plastic cap marked DEHAAS &ASSOC. INC. at the Northeast
corner of said Lot 1;thence North 87140'14"West, along the Northerly line of said Lot 1, a distance of
45.63 feet;thence South 62104'44"West a distance of 455.14 feet to a point of curve of a curve to the
right; thence along said curve to the left with a radius of 419.00 feet, a central angle of 13139'17"(a chord
which bears North 68054'23" East, 99.62)and a length of 99.86 feet; thence South 14015'29" East a
distance of 60.00 feet to the true point of beginning.
i
Exhibit A Page t Purchase and Sale Agreement—Fred W.Fields Revocable Living Trust
Exhibit B
PARTIAL ASSIGNMENT OF
AGREEMENT OF PURCHASE AND SALE AGREEMENT
THIS PARTIAL ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE(this
"Assignment"),dated effective as of July 30,2012, is made by and between Metro,an Oregon municipal
corporation,and the City of Tigard,an Oregon municipal corporation("Tigard").
Metro hereby assigns to Tigard,and Tigard hereby assumes from Metro,a portion of Metro's
right,title,and interest in and to that certain Purchase and Sale Agreement dated June 20,2012(the
"Purchase Agreement"),by and between Metro,as buyer,and the Fred W.Fields Revocable Living
Trust, as seller,for the purchase of that certain real property located in the City of Tigard,County of
Washington,State of Oregon,commonly known as Tax Parcel 1200(R0456081)in Section 1 of
Township 2 South,Range 1 West of the Willamette Meridian,and more particularly described in the
Purchase Agreement.
Metro and Tigard hereby agree that at Closing(a)Tigard shall deposit into escrow Two Million
Dollars($2,000,000.00)and(b)Metro shall also deposit into escrow the remaining balance of the
purchase price from regional funds from the 2006 Natural Areas Bond Measure. Metro and Tigard shall
take title as tenants in common,each with an undivided interest in the Property equal to their relative
portion of the purchase price paid.
The parties agree that within 120 days after the Closing Date,they will negotiate in good faith
toward and conclude an intergovernmental agreement that shall set forth the terms and conditions of a
management plan for the parties' respective use,management and improvement of the Property. This
Section shall survive the closing.
The parties acknowledge that pursuant to Section 21.5 of the Purchase Agreement, Metro is
authorized to enter into this Assignment without first obtaining Seller's consent.
This Assignment may be executed in any number of counterparts,each of which shall be an
original,but all of which together shall constitute one instrument. Capitalized terms which are used in
this Assignment shall have the meanings given to them in the Purchase Agreement.
IN WITNESS WHEREOF,Metro and Tigard have executed this Assignment as of the date first
written above.
METRO, CITY OF TIGARD,
an Oregon municipal corporation an Oregon municipal corporation
By: By:
Name: Name:
Title: Title:
Date: Date:
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