CCDA Resolution No. 12-02 CITY OF TIGARD, OREGON
CITY CENTER DEVELOPMENT AGENCY
RESOLUTION NO. 12- �
A RESOLUTION APPROVING THE PURCHASE OF THE SAXONY PACIFIC
PROPERTIES, (TAX MAP NOS.: 2S102AB02000 AND 2S102AB02100),AND
AUTHORIZING THE EXECUTIVE DIRECTOR OF THE CITY CENTER
DEVELOPMENT AGENCY TO TAKE ALL NECESSARY ACTION TO
COMPLETE THE PROPERTY PURCHASE ON BEHALF OF THE AGENCY
WHEREAS, the City Center Development Agency has the goal of acquiring property to provide
public space in the City Center Urban Renewal District;and
WHEREAS, the City Center Development Agency also has the goal of redeveloping key parcels in
the City Center Urban Renewal District; and
WHEREAS, the Saxony-Pacific properties, two adjacent tax lots within the boundaries of the City
Center Urban Renewal District,which front Fanno Creek,present a unique opportunity to
accomplish both goals; and
WHEREAS the agency and the property owner have reached a tentative agreement on the
purchase/ sale of the properties. This agreement is subject to City Council/City Center
Development Agency Board approval
NOW, THEREFORE, BE IT RESOLVED, by the Tigard City Center Development Agency that:
SECTION 1: The City Center Development Agency Board agrees to the terms of the
Purchase Agreement and Escrow Instructions, (Exhibit A),including the purchase price of$650,000
(or the appraised value if higher as defined in the Purchase and Sale Agreement) for the Saxony-
Pacific properties.
SECTION 2: The City Center Development Agency Board authorizes the CCDA
Executive Director to take all necessary action to complete the Saxony-Pacific property purchase on
behalf of the agency in accordance with the terms and conditions of the Purchase Agreement. Such
approval shall include,but not be limited to, execution of the Purchase Agreement and Escrow
Instructions and closing documents.
SECTION 3: This resolution is effective immediately upon passage.
CCDA Resolution No. 12-0':
Page 1
PASSED: This day of ,2012.
Chair Pro Tem CCDA Director Bue er—City of Tigard
City Center Development Agency
ATTEST:
Recorder—City of Tigard City Cen6r.Develop gency
CCDA Resolution No. 12-
Page 2
EXHIBIT A
PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
BETWEEN: Saxony-Pacific,LLC, an Oregon limited ("Seller")
liability company
And: The City Center Development Agency,the
Urban Renewal Agency of the City of Tigard ("Purchaser")
DATED: September ,2012 ("Effective Date")
RECITALS
A. Seller owns two parcels of real property in the city of Tigard,county of
Washington,Oregon, commonly known as 12533, 12535 and 12537 SW Main Street,Tigard,
OR 97224(Tax Map Nos.: 2S IO2ABO2000 and 2S 102AB02100),both of which are more fully
described on the attached and incorporated Exhibit A(collectively,the "Property").
B. Seller desires to sell the Property, and Purchaser desires to purchase the Property
pursuant to the terms set forth in this Agreement.
AGREEMENT
NOW,THEREFORE, for good and valuable consideration,the receipt and sufficiency
of which are hereby acknowledged,the parties hereto agree as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Cash. The term"Cash"means (i)United States currency, (ii) a check currently
dated and payable to Escrow Holder, or(iii)U.S. funds credited by wire transfer into Escrow
Holder's bank account.
1.2 Closing. The process described in Article 9 of this Agreement.
1.3 Closing Date. Closing shall occur on January 3,2013, or on such other date as
the parties may agree upon in writing. If this transaction is closed as part of Seller's prospective
1031 exchange,the Closing Date may occur as late as ninety(90)days after January 3,2013.
1.4 Contingency Period. The period that ends 120 days after the Effective Date.
1.5 Deed. A special warranty deed in the form of Exhibit B attached hereto which
shall be used to convey the Property from Seller to Purchaser.
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1.6 Earnest Money. The cash to be deposited into Escrow pursuant to Section 2.2 of
this Agreement in the amount of Ten Thousand and No/100 Dollars($10,000.00).
1.7 Environmental Laws. Any federal, state,or local laws, ordinances, codes,
statutes,regulations, administrative rules,policies and orders, and other authority existing now or
in the future that classify,regulate, list, or define Hazardous Materials.
1.8 Escrow Holder. First American Title, located at 9200 SE Sunnybrook Blvd,
Suite 400,Clackamas,Oregon, 97015,Phone: (503)659-0069.
1.9 Escrow. The escrow opened by Escrow Holder pursuant to this Agreement.
1.10 Hazardous Materials. Any toxic or hazardous substance,material,waste,
pollutant,contaminant, or infectious or radioactive material,including but not limited to those
substances,materials,waste, chemicals, or mixtures that are(or that contain any) substances,
chemicals, compounds,or mixtures regulated, either now or in the future,under any
Environmental Law.
1.11 Property. The term"Property"as defined in this Agreement, includes land
described in Exhibit A,together with all improvements,rights,privileges, servitudes and
appurtenances thereunto belonging or appertaining,including all right,title,and interest of
Seller, if any,in and to the streets, alleys, and rights-of-way adjacent to the land, which will be
transferred to Purchaser at Closing.
1.12 Property Documents. The documents relating to or affecting the Property to the
extent they exist and are in Seller's possession: land use permits, land use approvals,permits,
licenses,maps,development agreements, surveys and studies relating to the Property prepared
by third parties.
1.13 Purchase Price. Cash in the amount determined by operation of Section 2.3 of
this Agreement.
ARTICLE 2
EARNEST MONEY AND PURCHASE PRICE
2.1 Sale of Property. Subject to the terms and conditions in this Agreement, Seller
agrees to sell the Property to Purchaser, and Purchaser agrees to buy the Property from Seller.
2.2 Earnest Money. Within ten(10)days after the opening of Escrow as set forth in
Section 3.1,Purchaser shall deposit the Earnest Money into Escrow. Escrow Holder shall hold
the Earnest Money in a non-interest-bearing account. The Earnest Money shall be refundable to
Buyer until the Contingency Period(defined in Section 1.4)expires or the conditions precedent
to Closing set forth in Section 4 of this Agreement are waived in writing by Buyer; thereafter,the
Earnest Money shall not be refundable except in the event of a Seller default. The Earnest
Money shall be applicable to the Purchase Price at Closing.
2.3 Purchase Price.
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2.3.1 Except as provided in Section 2.3.2 below,the"Purchase Price" shall be the greater
of Six Hundred Fifty Thousand and No/100 Dollars($650,000.00) ("Base Purchase Price")
or the Appraised Value(defined below). During the Contingency Period the Purchaser will
obtain an appraisal of the Property from a certified appraiser("Appraisal"). The parties
agree that the opinion of value reflected in the Appraisal shall be the"Appraised Value"
for purposes of this Section 2.3.1.
2.3.2 In establishing the Base Purchase Price the parties have assumed that the Property
complies with applicable environmental laws and that that no remediation of contaminants
is required on or related to the Property. During the Contingency Period the Purchaser
shall obtain an environmental site assessment of the Property from a qualified
environmental consultant("ESA"). If the ESA concludes that contamination exists on the
Property which must be remediated in order for the Property to comply with applicable
environmental laws: (i)this Section 2.3.2 shall be used to determine the Purchase Price, (ii)
the Purchaser will engage the services of appropriate consultants to estimate required
remediation costs("Remediation Costs"),and(iii)the Purchase Price shall be: (A)the
higher of the Base Purchase Price or Appraised Value as determined under Section 2.3.1,
minus(B)the Remediation Costs. Seller has sole discretion to terminate the transaction if
"Remediation Costs"are unacceptable to Seller.
2.3.3 The Purchase Price shall be paid by Purchaser in Cash to Seller at the Closing.
ARTICLE 3
DELIVERIES TO ESCROW HOLDER
3.1 Opening of Escrow.
3.1.1 Within three(3)business days after the Effective Date,Purchaser and
Seller shall open Escrow by depositing with Escrow Holder a fully executed photocopy of this
Agreement for use as escrow instructions. Escrow Holder shall execute the Consent of Escrow
Holder which appears at the end of this Agreement and deliver a fully executed consent to
Purchaser and Seller.
3.1.2 Purchaser and Seller hereby authorize Escrow Holder to take necessary
steps for the Closing of this transaction pursuant to the terms of this Agreement.
3.1.3 Purchaser and Seller may jointly or separately prepare additional escrow
instructions. Escrow Holder may also provide general instructions. If there is any inconsistency
between the provisions of any of these instructions and this Agreement,the provisions of this
Agreement shall control.
3.2 Purchaser's Deliveries. At or before Closing,Purchaser shall deposit into
Escrow(i)the Earnest Money, (ii)the balance of the Purchase Price, (iii) an executed and
acknowledged counterpart acceptance of the Deed,and(iv)all other documents and instruments
reasonably requested by Escrow Holder for Closing.
30014-70193 ExhibittdocxISPR9/11/2012
3.3 Seller's Deliveries. At or before Closing, Seller shall deliver into Escrow(i) an
executed and acknowledged counterpart of the Deed, (ii) an executed Certificate of Non-Foreign
Status,pursuant to Section 1445(b)(2)of the Internal Revenue Code, certifying that Seller is a
non-foreign person, and(iii) all other documents and instruments reasonably requested by
Escrow Holder for Closing. At Closing, Seller shall deliver possession of the Property to
Purchaser.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
4.1 Approval of Property Documents. Within ten(10) days after the Effective
Date, Seller shall deliver all Property Documents within Seller's possession or control to
Purchaser. During the Contingency Period, Purchaser shall have the right to analyze the
Property Documents and determine, in Purchaser's sole, absolute and arbitrary discretion,
whether the Property is suitable for Purchaser's intended use.
4.2 Approval of the Property. During the Contingency Period,Purchaser shall have
the right to analyze the Property and determine, in Purchaser's sole, absolute and arbitrary
discretion,whether the Property is suitable for Purchaser's intended use. Purchaser shall have
the right to enter onto the Property to conduct any and all tests, investigations, and inspections
deemed necessary by Purchaser including,without limitation, Level I and II environmental site
assessments, evaluation of natural resources, a structural and geotechnical assessment, and an
appraisal. All such investigations and studies shall: (i)be preceded by at least five(5)business
days written notice to Seller, (ii)not interfere with the existing tenants on the Property, (iii)be
conducted during normal business hours unless otherwise agreed between the Parties, and(iv)be
conducted by Purchaser at its sole cost and expense. All of Purchaser's entries onto the Property
pursuant to this Section 4.2 shall be coordinated through Seller's broker,John Kennedy; Mr.
Kennedy shall be permitted to accompany Purchaser and its agents during any such inspection.
Purchaser agrees to provide Seller with copies of all inspection reports,test results and
environmental site assessments obtained pursuant to this Section 4.2. Purchaser shall defend,
indemnify and hold Seller harmless for, from, and against any claim, loss, or liability, or any
claim of lien or damage which arises in connection with any entry on the Property by Purchaser
or any activities on the Property by Purchaser, its agents, employees, and independent
contractors;provided, however,that Purchaser shall have no obligation to indemnify, defend,or
hold harmless Seller from any condition of the Property discovered by Purchaser,or from any
loss of marketability of the Property as a consequence of such discovery.
4.3 Approval of Title.
4.3.1 Preliminary Report. Within ten(10)days after the Effective Date, Seller
shall provide Purchaser with a preliminary title report issued by the Escrow Holder, describing
title to the Property, and including legible copies of all recorded documents described in the
preliminary report and plotted easements (collectively,the "Preliminary Report"). On or
before ten (10)days after Purchaser's receipt of the Preliminary Report, Purchaser shall deliver
written notice of approval or disapproval of matters disclosed in the Preliminary Report,which
approval or disapproval shall be in Purchaser's sole and absolute discretion. Failure of Purchaser
to deliver notice of disapproval of any matters disclosed in the Preliminary Report within such
50014-70193 ExhibitA.do xISPF/911112012
ten(10)-day period shall be deemed rejection of all such matters. Unless waived pursuant to
Section 4.3.3,the approved matters disclosed in the Preliminary Report along with the standard
printed exceptions on a form of title insurance policy, shall be the "Permitted Exceptions"
included as exceptions in the Title Policy, defined in Section 4.3.4.
4.3.2 Right to Cure Disapproval of Preliminary Report. If Purchaser
delivers notice of disapproval pursuant to Section 4.3.1 above, Seller may elect in writing, within
five (5)days thereafter,to agree to remove or otherwise cure,to Purchaser's reasonable
satisfaction, any disapproved item(s)prior to Closing. Notwithstanding any provision in this
Agreement to the contrary,prior to Closing, Seller shall be obligated to remove any deeds of
trust and other monetary liens(other than liens created by Purchaser and liens for non-delinquent
taxes and assessments)and any exceptions to title caused by Seller.
4.3.3 Failure to Cure Disapproved Items. If Seller gives Purchaser written
notice within the above-referenced five(5)-day period that Seller will remove or otherwise cure a
disapproved matter,but Seller is unable to remove such disapproved matter at or before Closing,
Purchaser may elect to either: (i)terminate this Agreement and receive a full refund of the
Earnest Money, or(ii)waive in writing its prior disapproval of such item and accept title subject
to such previously disapproved item,by delivering written notice of Purchaser's election to
Seller prior to Closing. If Seller either: (i) gives Purchaser timely notice within such five(5)-
day period that Seller has elected not to attempt to remove or otherwise cure all of the
disapproved item(s)or(ii) fails to notify Purchaser within such five(5)-day period whether or
not Seller will remove or otherwise attempt to cure the disapproved item(s),Purchaser shall have
ten(10)days after Purchaser's receipt of Seller's notice to notify Seller in writing of Purchaser's
election to(a)waive in writing its prior disapproval of such item(s) and accept title subject to
such previously disapproved item(s)or(b)terminate this Agreement, in which event the Earnest
Money shall be refunded to Purchaser. If Purchaser shall fail to notify Seller timely of its
election to proceed under clause(a) above,Purchaser shall be deemed to have elected to
terminate this Agreement, in which event the Earnest Money shall be refunded to Purchaser.
4.3.4 Title Policy. Seller shall be unconditionally committed to procure from
Escrow Holder upon the Closing, an ALTA standard coverage owner's policy of title insurance
for the Property,with a liability limit in the amount of the Purchase Price, and insuring fee title
vests in Purchaser subject only to the Permitted Exceptions (collectively,the"Title Policy"). 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 obtains, and pays the cost of, any
survey required for extended coverage and pays any additional costs associated with issuance of
such policy pursuant to section 8.4 of this Agreement.
4.4 Approval of Leases &Estoppel Certificates.
4.4.1 Leases. Within thirty(30)(10)days of the Effective Date, Seller will
provide to Purchaser copies of all current leases affecting the Property, and copies of any and all
documents other than leases which provide for or discuss any matters affecting the occupancy of
the Property by tenants and other third parties, including but not limited to options to lease,
relocation rights,termination rights, and/or expansion or contraction rights(collectively,the
"Lease Documents"). Purchaser may terminate this Agreement at any time during the
50014-10193 ExhibittdocxlSPF19/11/2012
Contingency Period if Purchaser shall determine in the exercise of its sole discretion that the
Lease Documents are not acceptable. Upon expiration of the Acceptable Tenancies(as defined
in Section 4.4.2 below),Purchaser shall provide such relocation rights and benefits as are
required by law.
4.4.2 No Tenancies. Except for tenancies in existence as of the Effective Date,
which shall be permitted to continue for a period of one up to(1)year from and after the Closing
Date("Acceptable Tenancies"), as of the Closing Date, Seller shall have either(i)terminated all
tenancies provided for in the Lease Documents which are unacceptable to Purchaser and
rendered the Property free of any and all other occupants whatsoever; and(ii) assigned all of
Seller's interest in all Lease Documents (including transfer of any security deposits held by
Seller under approved Lease Documents) ("Assignment of Leases"),which are acceptable to
Purchaser. Purchaser shall give Seller notice of all unacceptable tenancies no later than forty
(40)days prior to the closing date.
4.5 Contingency Failure. Notice of Termination; Failure to Notify. If Purchaser
determines, in Purchaser's sole, absolute, and arbitrary discretion,that either the Property
Documents,the Property,the title or the Property Leases are not suitable,Purchaser may
terminate this Agreement and cancel Escrow by delivering written notice of termination to Seller
prior to the expiration of the Contingency Period, in which case this Agreement shall
immediately terminate and Escrow Holder shall immediately return the Earnest Money to
Purchaser.
ARTICLE 5
COVENANTS AND AGREEMENTS
5.1 Damage or Destruction. If,prior to the Closing, all or a material part of the
Property is damaged or destroyed,Purchaser may terminate this Agreement and receive a refund
of the Earnest Money.
5.2 Personal Property. Prior to Closing, Seller shall remove all Seller's personal
property located on the Property.
ARTICLE 6
SELLER'S REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Seller. Seller represents and warrants that,
as of the Effective Date,the end of the Contingency Period, and the Closing,that all of the
representations and warranties contained in this Agreement are and shall be true and correct.
Each of Seller's representations and warranties is material to and is being relied upon by
Purchaser and the continuing truth thereof shall constitute a condition precedent to Purchaser's
obligations hereunder. Seller represents and warrants to Purchaser as follows:
6.1.1 Proof of Authority. Seller has authority and authorization to enter into
this Agreement and consummate the transaction contemplated by it, and shall deliver such proof
of the power and authority of the persons executing and/or delivering any instruments,
documents,or certificates on behalf of the Seller to act for or bind the Seller, as may be
reasonably required by the Escrow Holder and/or the Purchaser.
30014-70193 ExhibitA.docxlSPF19/11/2012
6.1.2 Title to the Property. Seller has sole legal and beneficial fee title to the
Property, and has not granted any person or entity any right or interest in the Property except as
set forth in this Agreement and in the Preliminary Report. Seller agrees to transfer the Property
to Purchaser via the Deed, subject only to the Permitted Exceptions.
6.1.3 Property Documents,Lease Documents; No Defaults. To Seller's
knowledge,the Property Documents and Lease Documents delivered by Seller to Purchaser are
true,correct and complete copies and there are no other documents or instruments that would
constitute Property Documents or Lease Documents that have not been delivered by Seller or
otherwise made available to Purchaser. Seller has no knowledge of any default by Seller under
any Property Documents or Lease Documents. Seller warrants that the services associated with
the Property Documents and Lease Documents,have been,or will be,paid for by Seller through
the Closing Date,no later than Closing.
6.1.4 Pending Transactions, Suits or Proceedings. To Seller's knowledge,
there are no transactions, suits,proceedings, litigation(including zoning or other land use
regulation proceedings),condemnation,or investigations pending or threatened against or
affecting the Property or Seller as the owner of the Property in any court at law or in equity, or
before or by any governmental department, commission,board, agency or instrumentality.
6.1.5 Defects. To Seller's knowledge,without independent investigation,there
are no latent or other defects or conditions on or about the Property which would cause injury or
damage to persons or property,or which would have a material adverse effect on lawful uses of
the Property.
6.1.6 No Further Encumbrances. As long as this Agreement remains in force,
Seller will not transfer,option,mortgage,pledge,or convey its interest in the Property or any
portion thereof nor any 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.
6.1.7 Hazardous Materials. To Seller's knowledge, without independent
investigation,no Hazardous Materials have been generated,disposed of, deposited or released
(or caused to be generated,disposed of or released)on,within,under, about or from the
Property. To Seller's knowledge,without independent investigation,no other party or person
has used, stored,transported,generated, disposed of or released on,within,under, about or from
the Property any Hazardous Materials. Without limiting the foregoing,neither Seller nor,to
Seller's knowledge,without independent investigation, any other party,has installed, operated or
maintained any underground storage tanks on or adjacent to the Property, and the Property is not
now, and has never been, in violation and is not currently under investigation for the violation of
any Environmental Laws. To Seller's knowledge,without independent investigation,there is no
asbestos or lead paint on the Property. Seller hereby assigns to Purchaser as of the Closing,to
the extent assignable, all claims,counterclaims, defenses or actions,whether at common law or
pursuant to any other applicable federal or state or other laws, if any,that Seller may have
against third parties to the extent relating to the existence of Hazardous Materials in, at, on,
under or about the Property.
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6.1.8 Access; Possession. The Property has legal and physical access to a
publicly-dedicated street or road. Except as reflected in the Lease Documents,there are no
leases or tenancies in effect on the Property and possession thereof can and will be delivered to
Purchaser upon Closing free of any tenants or occupants whatsoever.
6.1.9 Construction or Other Liens. Seller warrants that, at the time of
Closing,no work, labor or materials have been expended,bestowed or placed upon the Property,
adjacent thereto or within any existing or proposed assessment district which will remain unpaid
at close of escrow or upon which a lien may be filed.
6.1.10 No Option or Right of First Refusal to Acquire Premises. Seller
represents that no person or entity has any right of first refusal or option to acquire any interest in
the Property or any part thereof.
6.1.11 Conduct Pending Full Payment; Covenants.
6.1.11.1 Conduct of Property. Seller hereby agrees that Seller will
not modify, cancel, extend or otherwise change in any material manner any of the terms,
covenants or conditions of the Property Documents or Lease Documents,nor enter into any
additional leases as to the Property without Purchaser's written consent(which may be withheld
in Purchaser's sole discretion),nor enter into any other agreements having a material effect on
the Property without the prior written consent of Purchaser, (which Purchaser may withhold in
its sole discretion).
6.1.11.2 No Alterations. Seller will not make any material
alterations to the Property prior to the Closing.
6.1.11.3 Maintain Physical Condition. Seller,at its sole cost and
expense,will maintain and keep the Property in approximately the same condition,reasonable
wear and tear, damage by casualty excepted,between the Effective Date and the Closing Date,
and will keep Purchaser timely advised any change to its physical condition prior to the Closing
Date.
ARTICLE 7
PURCHASER'S REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representation and Warranties. Purchaser represents and
warrants that, as of the Effective Date,the end of the Contingency Period, and Closing, all of the
representations and warranties of Purchaser contained in this Agreement are and shall be true and
correct. Each of Purchaser's representations and warranties is material to and is being relied
upon by Seller and the continuing truth thereof shall constitute a condition precedent to Seller's
obligations hereunder. Purchaser represents and warrants to Seller as follows:
7.1.1 Authority. The execution and delivery of this Agreement has been duly
authorized and approved by all requisite action of Purchaser, and the consummation of the
transactions contemplated hereby will be duly authorized and approved by all requisite action of
Purchaser, and no other authorizations or approvals will be necessary in order to enable
Purchaser to enter into or to comply with the terms of this Agreement.
50014-70193 Exhibit9.docxLSPFi9/11/2012
7.1.2 Binding Effect of Documents. This Agreement and the other documents
to be executed by Purchaser hereunder,upon execution and delivery thereof by Purchaser,will
have been duly entered into by Purchaser, and will constitute legal, valid and binding obligations
of Purchaser. To Purchaser's actual knowledge,neither this Agreement nor anything provided to
be done under this Agreement violates or shall violate any contract,document,understanding,
agreement or instrument to which Purchaser is a party or by which it is bound.
ARTICLE 8
PRORATED FEES AND COSTS
8.1 Prorations. Escrow Holder will prorate between the parties,based on the latest
information available to Escrow Holder,all taxes,bonds and assessments("Taxes")for the
Property, except as provided in Section 8.2 below. If,after the Closing, either party receives a
bill for any Taxes,the parties agree that the Taxes shall be prorated between the parties to the
Closing Date. The party receiving the bill for the Taxes shall notify the other party in writing of
the amount of such Taxes and the party receiving that notice shall pay its prorated share of such
Taxes within thirty(30)days of demand therefore,but not later than ten(10)days prior to
delinquency. The parties' obligations under this Section shall survive Closing.
8.2 Penalties. Any penalties that would be due as a result of removal of the Property
from any tax deferral program shall be charged to Seller as though the Property were removed
from such program on the Closing Date. Seller's obligations under this Section shall survive
Closing.
8.3 Seller's Fees and Costs. Seller shall pay(i)the cost for the Title Policy, except
for any costs associated with Extended Coverage required by Purchaser; (ii)one-half of all
Escrow Holder's fees; and(iii)all transfer taxes. Except as otherwise provided for above, Seller
shall not be obligated to pay for any fees and costs.
8.4 Purchaser's Fees and Costs. Purchaser shall pay(i)the entire cost for any
Extended Coverage or endorsements for the Title Policy; (ii)one-half of the Escrow Holder's
escrow fee; and(iii) all recording charges.
8.5 Other Costs. Except as otherwise provided in this Agreement, each party shall
bear and pay the expense of its own attorneys,accountants and other professionals incurred in
negotiating and closing this Agreement.
ARTICLE 9
CLOSING
9.1 Closing. Escrow Holder shall close Escrow by(i)recording the Deed; (ii)
confirming execution of all documents necessary for Closing; and(iii)delivering funds and
documents as set forth herein,when and only when all terms and conditions of this Agreement
have been met and each of the conditions set forth below have been satisfied:
9.1.1 Funds and Instruments. All funds and instruments required pursuant to
this Agreement have been delivered to Escrow Holder.
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9.1.2 Satisfaction of Conditions Precedent. Each of the conditions precedent
set forth in the Agreement have been either satisfied or waived.
9.1.3 Liens and Encumbrances. All liens and encumbrances required to be
paid by Seller have been paid and satisfied at Seller's sole expense, including without limitation
any trust deed or mortgage affecting the Property. The Property shall be conveyed free of
encumbrances, except for the Permitted Exceptions and those expressly accepted or waived in
writing by Purchaser pursuant to the terms of this Agreement.
9.1.4 Assignment of Lease Documents. If applicable, Seller shall have
executed the Assignment of Leases attached to this Agreement as Exhibit C.
ARTICLE 10
RECORDATION AND DISTRIBUTION OF FUNDS AND DOCUMENTS
10.1 Recorded Documents. Escrow Holder shall cause the County Recorder of
Washington County to mail the Deed to Purchaser.
10.2 Conformed Copies. Escrow Holder shall at Closing deliver to Seller and
Purchaser(i) a copy of the Deed,conformed to show recording date, and conformed copies of
each document recorded to place title in the condition required by this Agreement; (ii) a copy of
each non-recorded document received hereunder by Escrow Holder; and(iii)copies of all
documents deposited into Escrow to the parties herein.
10.3 Payment of Funds at Closing. Escrow Holder shall deliver at Closing all
amounts as set forth in the final,approved closing statement.
10.4 Original Documents. If applicable, Escrow Holder shall at Closing deliver to
Purchaser the Original Assignment of Leases.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 Purchaser's Default. If Purchaser breaches this Agreement,which breach
Purchaser fails to cure within thirty(30)days after receipt of written notice thereof from Seller,
Purchaser shall be in default hereunder and Seller is entitled,as Seller's sole and exclusive
remedy,to liquidated damages pursuant to this Article. If Escrow fails to close due to
Purchaser's default,Purchaser shall pay all Escrow cancellation charges.
11.2 Seller's Remedies. In the event of Purchaser's default under this Agreement,the
Earnest Money shall be forfeited by Purchaser and retained by Seller as liquidated damages.
Such amount has been agreed by the parties to be reasonable compensation and the exclusive
remedy for Purchaser's default, since the precise amount of such compensation would be
difficult to determine. Seller shall have no right to any other damages,claims or actions against
Purchaser. By initialing this provision in the spaces below, Seller and Purchaser each
specifically affirm their respective agreement to this liquidated damages provision as Seller's
sole and exclusive remedy for Purchaser's default, and agreement that the sum is a reasonable
SUM.
5001470193 ExhibirAAdocxISPFi9111/2012
Purchaser's Initials Seller's Initials
11.3 Seller's Default. If Seller breaches this Agreement,which breach Seller fails to
cure within thirty(30)days after receipt of written notice thereof from Purchaser, Seller shall be
in default of this Agreement. If Escrow fails to close due to Seller's default, Seller shall pay all
Escrow cancellation charges.
11.4 Purchaser's Remedies. In the event of Seller's default under this Agreement,
Purchaser shall have the right to either(i)terminate this Agreement, and upon such event the
Earnest Money shall be immediately refunded to Purchaser;or(ii)seek an action for specific
performance in order to enforce Purchaser's rights hereunder. No provision of this Agreement
shall be construed as waiving any of Purchaser's rights regarding eminent domain.
ARTICLE 12
ASSIGNMENT
12.1 Assignment by Purchaser. Purchaser may not assign or otherwise transfer any
of its rights or obligations under this Agreement.
ARTICLE 13
GENERAL PROVISIONS
13.1 Attorneys 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,at trial and on any appeal.
13.2 Construction of Agreement. The agreements contained herein shall not be
construed in favor of or against either party,but shall be construed as if both parties prepared this
Agreement.
13.3 Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof and all prior and contemporaneous
agreements,representations,negotiations and understandings of the parties hereto, oral or
written, are hereby superseded and merged herein. The foregoing sentence shall in no way affect
the validity of any instruments executed by the parties in the form of the exhibits attached to this
Agreement.
13.4 Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Oregon.
13.5 Joint and Several Liability. If any party consists of more than one person or
entity,the liability of each such person or entity signing this Agreement shall be joint and
several.
13.6 Modification. No modification,waiver, amendment,discharge, or change of this
Agreement shall be valid unless the same is in writing and signed by all signatories hereto.
30014-70193 Echibittdo A3PFN/11/2011
13.7 Real Estate Brokerage Commission. Purchaser is represented by Jeff Sholian of
Jones Lang LaSalle. Purchaser agrees to be responsible for payment of all compensation,
commission or fee to Jeff Sholian and Jones Lang LaSalle in accordance with the terms and
conditions of the agreement between Purchaser and Jones Lang LaSalle. In the event a claim by
Jeff Sholian or Jones Lang LaSalle for real estate commissions, fees or compensation arise in
connection with this transaction,Purchaser shall indemnify,defend and hold harmless the Seller
from any loss or damage, including attorneys' fees that Purchaser suffers because of said claims.
Seller is represented by John A. Kennedy of Pacific Real Estate Investments, LLC. Seller agrees
to be responsible for payment of all compensation, commission or fee to John Kennedy and
Pacific Real Estate Investments,LLC in accordance with the terms and conditions of the
agreement between Seller and Pacific Real Estate Investments, LLC. In the event any claims by
any third party other than Jeff Sholian and Jones Lang LaSalle for real estate commissions, fees
or compensation arise in connection with this transaction, Seller shall indemnify,defend and
hold harmless the Purchaser from any loss or damage, including attorneys' fees that Purchaser
suffers because of said claims. The obligations of the parties in the indemnity provisions of this
Section 13.7 shall survive Closing or the termination of this Agreement.
13.8 Notice and Payments. Any notice or document to be given pursuant to this
Agreement must be delivered either in person, deposited in the United States mail duly certified
or registered,return receipt requested with postage prepaid,by electronic mail, or by Federal
Express or other similar overnight delivery service marked for next business day delivery.
Notices shall be effective upon receipt if delivered personally,upon confirmation of receipt if
sent by electronic mail,on the next day if sent by overnight courier,or two (2)days after deposit
in the mail if mailed. Any party listed below may designate a different address,which shall be
substituted for the one specified below,by written notice to the others.
If to Seller: Saxony-Pacific LLC
c/o Hans Finke
PO Box 1565
Wilsonville OR 97070
With a copy to: John A. Kennedy
Pacific Real Estate Investments,LLC
15280 NW Central Drive, Suite 202-10
Portland OR 97229
If to Purchaser: City Center Development Agency of the City of Tigard
Attn: Sean Farrelly
City Hall
13125 SW Hall Blvd
Tigard OR 97223
With a copy to : Jeff Bennett
50014-70193 Exhibid.doa SPFN/1112012
Jordan Ramis PC
Two Centerpointe Drive, 6th Floor
Lake Oswego,OR 97035
13.9 Remedies Cumulative. Except as specifically set forth herein, all rights and
remedies of Purchaser and Seller contained in this Agreement shall be construed and held to be
cumulative.
13.10 Severability. In the event that any phrase, clause,sentence,paragraph, section,
article or other portion of this Agreement shall become illegal,null or void or against public
policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal,null
or void or against public policy,the remaining portions of this Agreement shall not be affected
thereby and shall remain in force and effect to the fullest extent permissible by law.
13.11 Successors and Assigns. Subject to limitations expressed in this Agreement,
each and all of the covenants and conditions of this Agreement shall inure to the benefit of and
shall be binding upon the successors-in-interest, assigns, and representatives of the parties
hereto. As used in the foregoing,"successors" shall refer to the parties' interest in the Property
and to the successors to all or substantially all of their assets and to their successors by merger or
consolidation.
13.12 Time of the Essence. Time is of the essence of each and every provision of this
Agreement.
13.13 Legal Representation. Seller acknowledges that this is a legal document and
that Seller has been advised to obtain the advice of legal counsel in connection with its review
and execution of this Agreement. Seller covenants that it will not deny the enforceability of this
Agreement on the basis that Seller elects not to obtain legal counsel to review and approve this
Agreement.
13.14 Waiver. No waiver by Purchaser or Seller of a breach of any of the terms,
covenants or conditions of this Agreement by the other party shall be construed or held to be a
waiver of any succeeding or preceding breach of the same or any other term,covenant or
condition herein contained. No waiver of any default by Purchaser or Seller hereunder shall be
implied from any omission by the other party to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect a default other than as
specified in such waiver. The consent or approval by Purchaser or Seller to or of any act by the
other party requiring the consent or approval of the first party shall not be deemed to waive or
render unnecessary such party's consent or approval to or of any subsequent similar acts by the
other party.
50014-70193 ExhibiMA"xMPF911112012
13.15 Negation of Agency and Partnership. Any agreement by either party to
cooperate with the other in connection with any provision of this Agreement shall not be
construed as making either party an agent or partner of the other party.
13.16 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays and legal holidays in the State of Oregon, except that if the last day of any
period falls on any Saturday, Sunday or such holiday,the period shall be extended to include the
next day which is not a Saturday, Sunday or such holiday.
13.17 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 TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY,
UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,
CHAPTER 424,OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17,CHAPTER 855,
OREGON LAWS 2009 AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
13.18 Counterparts. This Agreement may be executed in counterparts, each of which,
when taken together, shall constitute fully executed originals.
13.19 Section 1031 Exchange Cooperation. In the event Seller elects to utilize this transaction
as part of a tax-deferred exchange pursuant to Section 1031 of the Internal Revenue Code,
Purchaser agrees to cooperate with Seller as reasonably necessary to accommodate such
exchange,but only so long as such cooperation is at no cost or additional expense to Purchaser.
IN WITNESS WHEREOF,the parties have executed this Agreement as of the Effective
Date.
SELLER: Saxony-Pacific LLC
50014-70193 W ibiN.docx1 SPFi9/11/2012
By:
Its:
PURCHASER: City Center Development Agency,the Urban
Renewal Agency of the City of Tigard
By:
Name:
Its:
APPROVED AS TO FORM:
By:
City Attorney
Exhibit A—Property
Exhibit B—Deed
Exhibit C -Assignment of Leases
50014-70193 Exhibi 4.docxISPFN/11/2012
CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to(i)accept the foregoing Agreement, (ii)
be the Escrow Holder under said Agreement, and(iii)be bound by said Agreement in the
performance of its duties as Escrow Holder;provided,however,the undersigned shall have no
obligations, liability or responsibility under this Consent or otherwise unless and until said
Agreement, fully signed by the parties,has been delivered to the undersigned.
DATED: 92012.
FIRST AMERICAN TITLE
By:
Name:
Title:
50014-70193 ExhibiN.d"x1 SPFN/11/1012
EXHIBIT A
[To be Provided by Title Company]
30014-70193Exhibi 4.docxISPFN/11/2011
EXHIBIT B
AFTER RECORDING RETURN TO:
City Center Development Agency of the City of Tigard
Attn: Executive Director/City Manager
City Hall
13125 SW Hall Blvd
Tigard OR 97223
UNTIL A CHANGE IS REQUESTED
SEND TAX STATEMENTS TO:
City Center Development Agency of the City of Tigard
Attn: Executive Director/City Manager
City Hall
13125 SW Hall Blvd
Tigard OR 97223
This space provided for recorder's use.
SPECIAL WARRANTY DEED
Saxony-Pacific LLC, an Oregon limited liability company,Grantor,conveys and
specially warrants to CITY CENTER DEVELOPMENT AGENCY,THE URBAN RENEWAL
AGENCY OF THE CITY OF TIGARD, Grantee,the following described real property free of
encumbrances created or suffered by the Grantor except as specifically set forth herein:
See Exhibit A attached hereto.
The true consideration for this conveyance is . This conveyance is
made subject to the matters set forth on Exhibit B attached hereto.
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.
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
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 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 195.300, 195.301 AND
300/470/93 EzhibitkdocxLSPFN////20/2
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.
DATED this day of , 2012.
GRANTOR
Saxony-Pacific,LLC, an Oregon limited liability company
By:
Name:
Its:
STATE OF OREGON )
SS.
County of )
This instrument was acknowledged before me on this day of , 2012,
by of Saxony-Pacific, LLC, an Oregon limited liability company
NOTARY PUBLIC FOR OREGON
My Commission Expires:
ACCEPTED:
GRANTEE
CITY CENTER DEVELOPMENT AGENCY,THE URBAN RENEWAL AGENCY OF THE
CITY OF TIGARD
By:
Name:
Its:
STATE OF OREGON )
ss.
County of )
This instrument was acknowledged before me on , 20 ,by
as of the City Center Development Agency,the
Urban Renewal Agency of the City of Tigard.
NOTARY PUBLIC FOR OREGON
My Commission Expires:
30014-70193 EzhibiN.doexVFN/11/1012
Exhibit A
30014-701Y3 EshibiLt dou SPF1911/12072
IIS _
EXHIBIT B
Exceptions
ii 50014-70193 Exhibid.doexI SMi9/11/2012
r
i
EXHIBIT C
Assignment of Leases
50014-70193 ExhibitkdocASPFi9/11/2011
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