Document Woodburn_doc_fa0275f059

After recording return to:'= Michael C. Robinson Perkins Coie LLP 1120 NW Couch Street, Tenth Floor Portland, OR 97209-4128 REEL 3893 PAGE 245 MARION COUNTY BILL BURGESS, COUNTY CLERK 12-20-2016 02:41 pm. Control Number 439061 $ 451.00 Instrument 2016 00060663 This space reserved for recorder's use. STATUTORY DEVELOPMENT AGREEMENT FOR PHASES 3, 4, 5, AND 6 OF THE BOONES CROSSING PLANNED UNIT DEVELOPMENT between CITY OF WOODBURN, OREGON; PREMIER DEVELOPMENT, LLC; WOODBURN DEVELOPMENT, LLC; NANCY BOCCHI; and FAYE ZIMMER This Statutory Development Agreement (the "Agreement") is made and entered on the dates executed as shown below by and between the CITY OF WOODBURN, OREGON, a municipal corporation of the State of Oregon ("City"); PREMIER DEVELOPMENT, LLC, an Oregon limited liability company ("Premier"); WOODBURN DEVELOPMENT, LLC, an Oregon limited liability company ("Woodburn Development"); NANCY BOCCHI ("Bacchi"); and FAYE ZIMMER ("Zimmer")(also referred to as "Phase 6 Owners"); pursuant to ORS 94.504 to 94.528. City, Premier, Woodburn Development, Bacchi, and Zimmer may be referred to jointly in this Agreement as the "Parties" and individually as a "Party." Premier, Woodburn Development, Bacchi, and Zimmer may be referred to jointly in this Agreement as the "Owners" and individually as an "Owner." RECITALS A. Premier is the legal owner of Boones Crossing Phase 3, containing approximately 8.45 acres of real property in the City located near SW Boones Ferry Road, more particularly described in Exhibit A and depicted in Exhibit B, both exhibits attached hereto and incorporated herein by reference ("Phase 3 Property"). 1 ---PAGE BREAK--- B. Woodburn Development, the successor to ICON Construction and Development, LLC, is the legal owner of Boones Crossing Phases 4 and 5, containing approximately 22.12 acres of real property in the City located immediately southeast of the Phase 3 Property and described in Exhibit A and depicted in Exhibit B, both exhibits attached hereto and incorpora~ed herein by reference ("Phases 4 and 5 Property"). C. Bocchi and Zimmer are the legal owners of Boones Crossing Phase 6, containing approximately 11.42 acres of real property in the City located immediately west of the Phases 4 and 5 Property and also described in Exhibit A and depicted in Exhibit B ("Phase 6 Property"). The Phase 3, Phases 4 and 5, and the Phase 6 Properties may be collectively referred to in this Agreement as the 11Property." D. The City originally approved development of the Property, subject to conditions, as the Boones Crossing Annexation Case No. 97-08; Zone Change No. 97-12; Conditional Use No. 97-03, Planned Unit Development, No. 97-03 ( 11PUD") and Variance No. 97-12, when the City Council adopted Ordinance No. 2246 ( 11Boones Crossing Decision") to be developed in four phases. Numerous modifications and approvals have occurred to the Boones Crossing Decision, including but not limited to City Ordinance No 2275 (Nov. 2007 modification of conditions of approval) and a 2003 staff decision approving revision to development in six phases. A copy of the original Boones Crossing Decision and its exhibits is set forth in Exhibit C, attached hereto and incorporated herein by reference. E. The conditions of approval of Ordinance No. 2246, as modified by City Ordinance 2275, require the Owners to construct various public improvements. Some of these improvements were completed in conjunction with Phases 1 and 2 of the PUD. Others, however, have not been completed. F. The Parties agree that the passage of time, changes in ownership and modifications to the Boones Crossing Decision have created substantial uncertainty, including but not limited to the extent of Owners' responsibility for the cost of the remaining public improvements, all of which likely would unreasonably burden and delay development of the Property. H. The Parties desire to enter this Agreement to: clarify the remaining public improvements needed to support development of the Property consistent with the PUD; clarify and establish Owners' obligations regarding payment for the public improvements; make related determinations regarding the conditions of the PUD; and resolve ongoing disagreements and potential litigation pertaining to development of the Property, including Woodburn Development's December 4, 2014, appeal ( 11Appeal") of the City's denial of system development charge ( 11SDC") credits for Woodburn Development's construction of a public lift station. I. The City finds that entering this Agreement is in the public interest as it resolves uncertainties regarding the terms and conditions of the PUD approvals, avoids 2 ---PAGE BREAK--- potential litigation between and among the City and the Owners and encourages the development of housing and public improvements serving the residents of the City. AGREEMENT In consideration of the mutual promises and performance obligations of each Party as set out in this Agreement, City, Premier, Woodburn Development, Bocchi, and Zimmer hereby agree to the following terms and conditions: 1. Effective Date and Term of Agreement. 1.1 This Agreement shall be effective upon the later of: adoption of an ordinance by the Woodburn City Council approving this Agreement pursuant to ORS 94.508; and execution of this Agreement by all Parties. As used herein, "adoption of an ordinance by the Woodburn City Council" means the date upon which the ordinance becomes effective. The Agreement shall continue in effect for a period of ten (10) years after its effective date, unless it is terminated in accordance with Section 11 of this Agreement. Any party may request one five-year extension which the other parties shall not unreasonably refuse provided the requesting party demonstrates that factors beyond its reasonable control resulted in delay in implementing this Agreement and the Boones Crossing PUD. In no event shall this Agreement extend beyond 15 years unless amended as provided by law. 1.2 If Phase 4, 5 or 6 has not received final development approval on the date that is 30 days prior to termination of this Agreement pursuant to paragraph 1.1, termination shall constitute an amendment to the Boones Crossing Planned Unit Development removing the Phase that has not received final development approval from the Planned Unit Development. 2. Description of Development Authorized by this Development Agreement. 2.1 Permitted Use. The permitted uses shall be those provided for in the Boones Crossing Decision. 2.2 Density. The maximum density applicable to development of the Property shall be as provided for in the Boones Crossing Decision; provided, however, that the number and configuration of approved lots in Phases 4, 5 and 6 shall be as approved by the City in subsequent final plats. This Section shall not preclude a zoning map amendment for Phase 6. A zone map amendment shall not require an amendment to the Boones Crossing PUD or this agreement provided that it does not alter the public improvement and reimbursement obligations in this Agreement. 2.3 Maximum Height and Size of Structures. The maximum height and size of structures on the Property shall be as provided for in the Boones Crossing Decision. 3 ---PAGE BREAK--- 2.4 Future Land Division Approvals for. Phases 4, 5, and 6. Development of the Property in accordance with the Boones Crossing Decision, as modified by this Agreement, shall require Owners to obtain final plat approval for Phases 4, 5, and 6. The conditions, terms, restrictions, and requirements for final land division approval for Phases 4, 5, and 6 shall be as provided for in the Boones Crossing Decision, as modified by this Agreement, and the City's land development regulations. Commercial and multi- family development shall require discretionary design review approval. In the event of a conflict between these documents, this Agreement shall control. No other future discretionary approvals are required in order to develop the Property in accordance with the Boones Crossing Decision. 2.5 Final Plat for Phase 3. The Parties agree that upon the Effective Date of this Agreement, the City may approve the final plat for Phase 3, provided all other applicable standards are met. 2.6 Final Plats for Phases 4, 5 and 6. The Parties agree that the final plats filed pursuant to the Boones Crossing preliminary plat approvals for Phases 4, 5, and 6 shall be subject to the current approval criteria in Woodburn Development Code ("WOO") Sections 3.08.01 and 5.01.06. 2. 7 Development Schedule. Construction of the development shall commence and be completed within ten (10) years after the effective date of this Agreement unless the parties agree to a five-year extension of this Agreement as provided in Section 1.1. Provided, however, City shall allow the final plat for Phase 3 to be recorded upon execution of this Agreement provided that all applicable standards are met; and further provided that Woodburn Development shall obtain land division approvals and record the final plat for the Phases 4 and 5 Property within sixty (60) months after the execution of this Agreement. 3. Infrastructure Improvements and Dedications; Reimbursements. 3.1 Reimbursements. Parties making improvements to serve their respective phases ("Building Phase Owner") may also provide for other phases to be served by the improvements ("Benefiting Phase Owner"). In such case, the Benefitting Phase Owner shall make payments as provided for in Section 3.2.1 and 3.3.1 and 3.5.2 of this Agreement. 3.2 Construction of Public Improvements. Except as modified herein, Owners shall be responsible, at their expense, for construction of the public improvements conditioned in the Boones Crossing PUD approval and as provided below. Upon completion of construction, Owners, respectively, shall dedicate the respective improvements to City. Upon proper dedication of an improvement that meets the requirements of this Agreement, City shall accept that improvement and shall be responsible for maintenance of that improvement. In the event that an Owner(s) unilaterally constructs an improvement identified as eligible for reimbursement below, 4 ---PAGE BREAK--- each Benefitting Owner shall reimburse the Building Owner(s) for that Benefitting Owner's proportionate share of the improvement, as set for below in Sections 3.2.1, 3.3.1 and 3.5.2 of this Agreement. 3.2.1 Pro Rata Reimbursement. The Benefitting Owner shall be permitted to reimburse the Building Owner(s) for the Benefitting Owner's proportionate share of the improvement on a pro rata per lot basis or a per multi-family residential unit basis should a portion of Phase 6 be developed for multi-family use. Prior to issuing a building permit, the Benefitting Phase Owner shall provide a receipt or other proof reasonably acceptable to City that the Benefitting Phase Owner has paid the pro rata payment for that lot to the Building Phase Owner. Provided such documentation is obtained by City, there shall be no recourse against City for any claim by the Building Phase Owner. 3.3 Sanitary Sewer Wet Well and Pump Apparatus. City shall not apply Condition D.1, p. 11 of Ordinance 2246, as subsequently modified, to development of the Property. Instead, to ensure adequate sanitary sewer service, Woodburn Development shall install a wet well and pump apparatus for a sanitary sewer lift station consistent with standards identified by the City Engineer on the Phases 4 and 5 Property, or other location if mutually agreeable to City and Woodburn Development, before recording the final plat for Phases 4, and 5. The wet well shall be adequate for a regional lift station, and the pump apparatus shall be adequate for a lift station to service Phases 4, 5, and 6 of the Boones Crossing development and the adjacent properties within the Urban Growth Boundary. The exact location shall be subject to approval by the City Engineer. 3.3.1 Payment by Phase 6 Owners to Phase 4 and 5 Owner. Phase 6 Owners shall reimburse Woodburn Development the sum of One Hundred Thousand Dollars ($100,000) as reimbursement for Phase 6 benefitting from the wet well and pump apparatus. In accordance with Section 3.2.1, based on the number of lots in the final plat of Phase 6, the Phase 6 Owners shall reimburse Woodburn Development on a pro rata per lot basis or a per multi-family residential unit basis for each lot prior to the issuance of each building permit for Phase 6. 3.3.2 Sewer Line Easement. Phase 6 Owners have a Temporary Access and Utility Easement in favor of Phase 6 on property owned by DMHP, LLC, recorded as instrument number 2014 00024293 . Phase 6 Owners agree to assign the easement to Woodburn Development for the purpose specified, if requested by Woodburn Development. 3.4 South Arterial. Woodburn Development shall construct the improvements specified in Condition E 3 Ordinance 2246 for a public minor arterial for the portion of the South Arterial located on the Phases 4 and 5 Property before recording the final plat for Phases 4 or 5. Phase 6 Owners shall construct the improvement specified in Condition 3 E.3 of Ordinance 2246 for the portion of the 5 ---PAGE BREAK--- South Arterial located on the Phase 6 Property before recording the final plat or obtaining design review approval for Phase 6. 3.5 Parks. 3.5.1 The Parties agree that Woodburn Development shall not be required to develop a mini-park on the Phases 4 and 5 of the Property. 3.5.2 City Park. Phase 6 Owners shall dedicate three acres of land located within Phase 6 to the City for park purposes, with the specific location and configuration mutually acceptable to Phase 6 Owners and City (but the park area shall be adequately separated from Boones Ferry Road and the South Arterial). The 3-acres shall be dedicated within one year of the execution of this Agreement or within 120 days of the date of approval of the final plat for Phases 4 and 5, whichever first occurs. This park dedication is not eligible for SDC credits. City staff will cooperate and assist, but the Phase 6 Owners shall take such steps and pay such costs as are necessary to effectuate the dedication. The Parties agree that the three acres within Phase 6 to be dedicated as a City park has a fair market value of $300,000. The Parties further agree that Phases 3, 4 and 5 are Benefitting Phase Owners of this park dedication and shall reimburse the Phase 6 Owners for the park dedication on a per-lot basis ($1,239.67 per lot), as follows: Phase 3 (Premier): 42 x $1,239.67 per lot+ $10,000 = $62,066. Phases 4 & 5 (Woodburn Development): 1111ots x $1,239.67 per lot+ $30,000 = $167,603. Prior to issuing a building permit, the Benefitting Phase Owner shall provide a receipt or other proof reasonably acceptable to the City that the Benefitting Phase Owner has paid the pro rata payment for that lot to the Phase 6 Owners. The Benefiting Phase Owner may, at its sole discretion, make payments for more than one lot at a time. Condition No. A-15 of Ordinance No 2246 is deleted. No party shall be required to pay for or construct improvements on or for the Community Park, other than payment of the City Park SDC as provided in Section 4.4. Nothing in this Agreement, however, precludes the parties from mutually agreeing to dedication of additional land for 6 ---PAGE BREAK--- parks or making park improvements and in exchange for appropriate SDC credits. Once dedicated, the City agrees to maintain the three acre park land by periodically cutting and disposing of grass, shrubbery, brush, bushes, weeds or other noxious vegetation as often as needed to prevent them from becoming or, in the case of weeds or other noxious vegetation, from maturing or from going to seed. 3.6 Stormwater. Woodburn Development and the Phase 6 Owners shall, at their individual expense, construct and dedicate stormwater facilities to serve the Phases 4 and 5 Property and the Phase 6 Property in accordance with Condition E.l (Public Works- Drainage) of Ordinance 2246. Phase 6 shall be permitted to use the stormwater improvement serving Phases 4 and 5. Woodburn Development shall install the storm line in Phase 5 up to the Phase 6 property line which shall be of adequate size to accommodate the storm water discharge from Phase 6. 4. Fees, Charges, and Credits. 4.1 Except as otherwise provided in this section of the Agreement, fees and charges applicable to development of the Property shall be as provided for in the City's land development regulations and adopted City ordinances. 4.2 The City shall not apply Condition B.ll of Ordinance 2246 (Public Works- General Conditions) to the Property and agrees to allow Owners to apply for SOC credits as provided in the City SDC ordinance for completion of the public improvements described in Section 3 of this Agreement or otherwise required by the Boones Crossing decision and completed after the date of this Agreement. Park SOC's shall be adjusted as provided in Section 4.4. The regional sanitary sewer lift station is now part of the adopted City CIP and is creditable as provided by the SOC ordinance. The City shall review any SOC credit request from an Owner(s) in good faith, and the City shall grant such request, provided that it complies with the City's required procedures and applicable local or state substantive approval criteria. Owners may appeal any credit denial as provided by ordinance or state law. An example illustrating the calculation of SOC credits, including City reimbursement as provided in Section 4.3 is attached and incorporated herein as Exhibit D. It is understood and agreed that the numbers set forth therein are estimates only. The actual amounts, including which costs are eligible for credits, will be calculated as provided in the City SOC ordinances and regulations. Nothing herein precludes any party from appealing such determination as provided for by law. 4.3 Pump Station Rein:-bursement. In addition to any SOC credits, City shall reimburse Woodburn Development in cash equal to the amount of unusable SOC credits against the cost of oversizing the pump station up to a maximum reimbursement of $80,000. 7 ---PAGE BREAK--- 4.4 Payment of SOC Fees. 4.4.1 The owners of Phases 3- 6 agree that they are responsible to pay Recreation and Park SOC fees in effect on the date building permits are issued for each lot. City acknowledges receipt of $161,805.00 in payment of Recreation and Parks SOC fees for the Property ("Prior Payment''). City agrees that the credit for the Prior Payment shall be allocated among Phases 3 through 6 of the Property as follows: Phase 1 $ 29,463.00 Phase 2 $ 15,456.00 Phase 3 $ 20,286.00 Phases 4 & 5 $ 53,613.00 Phase 6 $ 42,987.00 At the time of building permit issuance, Park SOC credits shall be issued for the Prior Payment as follows: Phase 3- $20,286.00 ($483 per lot assuming 42 lots) Phase 4 & 5 - $53,613.00 ($483 per lot assuming 1111ots) In lieu of SOC credits for the Prior Payment, City shall pay to the owner of Phase 6, the sum of $42,987 at the time the deed to the City Park is provided to City as required pursuant to paragraph 3.5.2. 4.4.2 Premier Development and Woodburn Development assert that they paid the then current Park SOC at the time of obtaining building permits for some or all lots in phases 1 and 2, respectively in addition to City receipt of the Prior Payment, and that this constituted a "double payment." City agrees to refund to Premier Development or Woodburn Development the amount over $483.00 for each such lot if City receives documentation that Premier Development or Woodburn Development in fact paid the then current Park SOC on that lot. Documentation may include cancelled checks, receipts issued by the City or other documentation reasonably satisfactory to City. City shall cooperate in resolving any alleged double payments but the burden of proof is on the party seeking a refund. Claims for refunds, including all supporting documentation, must be filed with the City no later than the date that is six months from the date this Agreement is approved by the City Council. Nothing in this Agreement constitutes an admission by City that any such payments were made or that any refunds are due for any such payments. 4.5 Additional Amendments to Conditions of Approval. 4.5.1 Modification of Condition C Owners shall not be required to provide connector paths of grass-crete material for Phase Three, Four, Five and Six, as previously required by Condition C(4). In its place, Owners shall submit an alternative 8 ---PAGE BREAK--- design (other than standard asphalt paving) that will require less maintenance. The remainder of Condition C shall remain in effect. 4.5.2. Modification of Condition C Owners shall not be required to build the interior residential connector streets with a 10-foot wide landscaped boulevard for Phase Three, Four, Five and Six; as previously required by Condition C(3). In its place, Owners shall submit an alternative design which will require no ongoing vegetative maintenance and shall transition the existing island in the connector street. Allowable parking and signage will be reviewed during engineering plan review, based on final transition design and street cross-section. The remainder of Condition C shall remain in effect. 4.5.3 Homeowner's Association. Unless the Boones Crossing Decision is modified as provided under current City Code, each phase shall provide for a Homeowner's Association. The Phase 3 Homeowner's Association shall at a minimum be responsible for Phase 3's impact on the stormwater facility located in Phase 1. 4.5.4. Maintenance of Pedestrian Pathway. The Boones Crossing PUD included pedestrian paths (labeled tract and connecting from internal streets to the neighborhood park. The requirement to for these pedestrian paths is deleted. This does not impact sidewalks. 4.5.5 Modification of Condition A.3 (Planning). Condition A.3 (Planning) is modified to read: The Planned Unit Development (hereinafter the "PUD") shall be in substantial conformity with the preliminary plan as modified by this Agreement. 5. Withdrawal of SOC Credit Appeal. Within two business days after the later of: the Effective Date of this Agreement; and written notification by City to Woodburn Development that the Woodburn City Council has adopted an ordinance approving this Agreement, Woodburn Development shall submit a written withdrawal to the City of its Appeal of the City's System Development Charge credit decision. 6. Schedule and Procedure for Compliance Review. The schedule and procedure for compliance review shall be as provided for in the City's current land use regulations and adopted City ordinances. 7. Effect of Development Agreement on Boones Crossing Decision. The Boones Crossing Decision shall not be amended or affected in any way by this Development Agreement except as specifically provided herein. 9 ---PAGE BREAK--- 8. Continuing Effect of Agreement. 8.1 In the case of any change in regional policy or federal or state law or other change in circumstance which renders compliance with this Agreement impossible or unlawful, the Parties will attempt to give effect to the remainder of this Agreement, but only if such effect does not prejudice the substantial rights of any Party under this Agreement. If the substantial rights of any Party are prejudiced by giving effect to the remainder of this Agreement, then the Parties shall negotiate in good faith to revise this Agreement to give effect to its original intent. If, because of a change in policy, law or circumstance, this Agreement fails of its essential purpose (vesting of allowed uses and limitations on development conditions and fees and charges) then the Parties shall be placed into their original position to the extent practical. It is the intent of this Agreement to vest development rights and conditions, including but not limited to the permitted uses, density and intensity of uses, infrastructure improvements, fees, and charges as set for in this Agreement, notwithstanding any change in local ordinance or policy. 8.2 The Property is within the City limits of the City of Woodburn, therefore the requirements of ORS 94.504(2) are not applicable to this Agreement. 9. Assignability of Agreement. This Agreement shall not be assigned by an Owner, in whole or in part, without the advance written approval of the City, which shall not be unreasonably withheld. The terms and conditions contained in this Agreement shall, subject to the provisions of this assignment, apply to and bind the heirs, successors, personal representatives, and assigns of all of the Parties hereto. 10. Default; Remedy. 10.1 Default/Cure. The following shall constitute defaults on the part of a Party: 10.1.1 A breach of a material provision of this Agreement, whether by action or inaction of a Party which continues and is not remedied within sixty (60) days after the other Party has given notice specifying the breach; provided that if the non- breaching Party determines that such breach cannot with due diligence be cured within a period of sixty (60) days, the non-breaching Party may allow the breaching Party a longer period of time to cure the breach, and in such event the breach shall not constitute a default so long as the breaching Party diligently proceeds to affect a cure and the cure is accomplished within the longer period of time granted by the non- breaching Party; or 10 ---PAGE BREAK--- 10.1.2 Any assignment by a Party for the benefit of creditors, or adjudication as a bankrupt, or appointment of a receiver, trustee or creditor's committee over a Party. 10.2 Remedies. Each Party shall have all available remedies at law or in equity to recover damages and compel the performance of the other Party pursuant to this Agreement. The rights and remedies afforded under this Agreement are not exclusive and shall be in addition to and cumulative with any and all rights otherwise available at law or in equity. The exercise by any Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different time, of any other such remedy for the same default or breach or of any of its remedies for any other default or breach by any other Party, including, without limitation, the right to compel specific performance. 11. Amendment, Termination or Extension of Agreement. This Agreement may only be amended, terminated or extended by the mutual consent of the Parties, or their successors in interest pursuant to ORS 94.522. 12. Release and Waiver of Claims. Each Party hereby releases, waives and covenants not to sue any other Party, their officers, employees and agents, for any claim, known or unknown, arising from or relating to the Boones Crossing Decision, as modified and any prior decisions, actions or failure to act arising under or relating to such approvals or this Agreement. Owners expressly represent, warrant and agree that the conditions of approval and financial obligations, as modified herein, are reasonable, proper and proportionate and acknowledge that execution of this Agreement by City is expressly reliant on this Section 12. Nothing in this Section, however, shall limit or restrict any Party from enforcing the terms of the Boones Crossing Decision as modified, and this Agreement. 13. Miscellaneous Provisions. 13.1 Notice. A notice or communication under this Agreement by any Party shall be in writing and shall be dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by either personal delivery or nationally- recognized overnight courier (such as UPS or Federal Express), and follows: 13.1.1 In the case of a notice or communication to City, addressed as City of Woodburn ATIN: City Manager 270 Montgomery Street Woodburn, Oregon 97071 11 ---PAGE BREAK--- With copy to: N. Robert Shields, City Attorney 270 Montgomery Street Woodburn, Oregon 97071 13.1.2 In the case of a notice or communication to Woodburn Development, addressed as follows: With copy to: Premier Development, LLC Attn: Lori Zumwalt 1312 NE Highway 99W McMinnville, OR 97128 Andrew H. Stamp Andrew H. Stamp, P.C. Kruse Mercantile Prof. Offices, Ste 16 4248 Galewood Street Lake Oswego, OR 97035 13.1.3 In the case of a notice or communication to Woodburn Development, addressed as follows: With copy to: Woodburn Development, LLC Attn: Mark Handris 1980 Willamette Drive, Suite 200 West Linn, OR 97068 Michael C. Robinson Perkins Coie LLP 1120 NW Couch Street, Tenth Floor Portland, OR 97209 13.1.4 In the case of a notice or communication to Bacchi, addressed as follows: With copy to: Nancy Bacchi \ 311 t> Lee lc.jD 1 ot. 'l7o -as Gregory S. Hathaway Hathaway Koback Connors LLP 520 SW Yamhill Street, Suite 235 Portland, OR 97204 12 rz.. ---PAGE BREAK--- as follows: With copy to: 13.1.5 In the case of a notice or communication to Zimmer, addressed Faye Zimmer Gregory S. Hathaway ~ Hathaway Koback Connors LLP 520 SW Yamhill Street, Suite 235 Portland, OR 97204 ~ or addressed in such other way in respect to a Party as that Party may, from time to time, designate in writing dispatched as provided in this section. 13.2 Headings. Any titles of the sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 13.3 Counterparts. In the event this Agreement is executed in two or more counterparts, each counterpart shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13.4 Waivers. No waiver made by any Party with respect to the performance, or manner or time thereof, of any obligation of any other Party or any condition inuring to its benefit under this Agreement shall be considered a waiver of any other rights of the Party making the waiver. No waiver by a Party of any provision of this Agreement or any breach thereof shall be of any force or effect unless in writing; and no such waiver shall be construed to be a continuing waiver. 13.5 Time of the Essence. Time is of the essence under this Agreement. 13.6 Choice of Law. This Agreement shall be interpreted under the laws of the State of Oregon. 13.7 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 legal holiday in the State of Oregon, the period shall be extended to include the next day which is not a Saturday, Sunday, or such a holiday. 13.8 Construction. In construing this Agreement, singular pronouns shall be taken to mean and include the plural and the masculine pronoun shall be taken to mean and include the feminine and the neuter, as the context may require. 13 ---PAGE BREAK--- 13.9 Severability. Consistent with Section 8 above, if any clause, sentence or any other portion of the terms and conditions of this Agreement becomes illegal, null or void for any reason, the remaining portions will remain in full force and effect to the fullest extent permitted by law. 13.10 Place of Enforcement. Any action or suit to enforce or construe any provision of this Agreement by any Party shall be brought in the Circuit Court of the State of Oregon for Marion County, or the United States District Court for the District of Oregon. 13.11 Good Faith and Reasonableness. The Parties intend that the obligations of good faith and fair dealing apply to this Agreement generally and that no negative inferences be drawn by the absence of an explicit obligation to be reasonable in any portion of this Agreement. The obligation to be reasonable shall only be negated if arbitrariness is clearly and explicitly permitted as to the specific item in question, such as in the case of a Party being given "sole discretion" or being allowed to make a decision in its "sole judgment." 13.12 Condition of City Obligations. All City obligations pursuant to this Agreement that require the expenditure of funds are contingent upon future appropriations by City as part of the local budget process. Nothing in this Agreement implies an obligation on City to appropriate any such monies. 13.13 Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the Parties agree to cooperate in defending such action. 13.14 Enforced Delay, Extension of Times of Performance. In addition to the specific provisions of this Agreement, performance by any Party shall not be in default where delay or default is due to war; insurrection, strikes, riots, floods, drought, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by governmental entities other than the City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, litigation or similar bases for excused performance which is not within reasonable control of the Party to be excused; provided, however, that the Parties agree to proceed in accordance with Section 9 in the event of the occurrence of any of the foregoing events also described in Section 9. 13.15 Other Necessary Acts. Each Party shall execute and deliver to the other all such further instruments and documents and take such additional acts (which, in the case of City, shall require adopting necessary ordinances and resolutions) as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other Parties the full and complete enjoyment of rights and privileges hereunder. 14 ---PAGE BREAK--- 13.16 Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter covered by this Agreement. 13.17 Interpretation of Agreement. This Agreement is the result of arm's length negotiations between the Parties and shall not be construed against any Party by reason of its preparation of this Agreement. 13.18 Capacity to Execute; Mutual Representations. The Parties each warrant and represent to the other that this Agreement constitutes a legal, valid, and binding obligation of that Party. Without limiting the generality of the foregoing, each Party represents that its governing authority has authorized the execution, delivery, and performance of this Agreement by it. The individuals executing this Agreement warrant that they have full authority to execute this Agreement on behalf of the entity for whom they purport to be acting. Each Party represents to the others that neither the execution and delivery of this Agreement, nor performance of the obligations under this Agreement will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, government agency, or court to which it is subject or any provision of its charter or bylaws; or conflict with, result in a breach of, or constitute a default under, any other agreement to which it is a party or by which it is bound. 13.19 Recording; Covenant. City shall cause this Agreement to be recorded among the Deed Records in and for Marion County, Oregon, pursuant to ORS 94.528. This Agreement shall constitute a covenant running with the Property and shall be binding on and enforceable by the Parties and their successors and assigns. 13.20 Non-appropriation. To the extent that this Agreement obligates City to expend moneys such expenditures are contingent on future appropriations as part of the local budget process and City is not obligated to appropriate such moneys. 13.21 Form of Agreement; Exhibits. This Agreement consists of 20 pages and four exhibits. 15 ---PAGE BREAK--- Executed this \ ~ day of\)c.. , 2016. CITY OF WOODBURN, OREGON, a municipal corr:~oration of the State of Oregon By: • Print Name:~ Title: Gt1 STATE of OREGON COUNTY of MARION On this ~day of 12:o?mb.u-, 2016, Slo# T::en'c.lc.sun personally appeared before me and stated that (s)he is the t!ify Adrrziotskw- of the City of Woodburn, a municipal corporation of the State of Oregon, and that the instrument was signed on behalf of said entity and acknowledged said instrument to be its voluntary act and deed. Before me: SEAL: Notary Publi~lor Oregon ~ , Print Name: My Commission Expires: N1arr;h LIP, r-Aot~. I OFFICIAL STAMP. HEATHER MARIE PIERSON - NOTARY PUBLIC - OREGO~ . COMMISSION NO. 92631!r' CDMMISSION EXPIRES MARCH 16,2018- 16 ---PAGE BREAK--- PREMIER DEVELOPMENT, LLC, an Oregon Limited Liability Company :~st:ti:Et:::tT Title: lVI~ • STATE of OREGON COUNTY of fv\00 Dl'\ On this 1.2. day of J:\...umber, 2016, Lori Zumu.:Ja__!-J.- personally appeared before me and stated that he/she is the ~ of Premier Development, LLC, a L.!rrai l i ; f1 tt nd that the instrument was signed on behalf of said company and acknowledged sai instrument to be its v~~~e me: Notary Public for Oregon n - Print Name: ~e.r t-'Le-rE:::J;!'Y' My Commission Expjr~: Morc.h ILe,a-ol~ . SEAL: 17 ---PAGE BREAK--- STATE of OREGON COUNTY of .llhan'D fl On this j3_day of Decemb..er. 2016, t\1o-v1L personally appeared before me and stated that he/she is the~cm ' of Woodburn Development, LLC, an Oregon limited liability company, and tha h nstrument was signed on behalf of said company and acknowledged said instrument t be its volt)tary act and deed. Before me: SEAL: . \"UA~ Notary Public for Oregon ~ PrintName: ~ex My Commission Expires: OFFICIAL STAMP HEATHER MARIE PIERSON NOTARY PUBLIC • OREGON . COMMISSION NO. 926319 MY COMMISSION EXPIRES MARCH 16,2018 18 ---PAGE BREAK--- STATE of OREGON ~ COUNTY of Ma.n~ On this ~day this instrument was acknowledged before me by Nancy Bocchi. Before me: SEAL: Notary Public for Oregon n · Print Name: ~ec Yle.t50Y\.J My Commission Expires: fVo. .ccta I \o 1 dD vFf~IClAL STAMP HEATi-II:.H MARIE PIERSON NUl A".V PU8\.!C • OREGON COMMISSiON NO. 926319 MY COMM::;SlOfi f.XPIHES MARCH 16, 2018 19 ---PAGE BREAK--- FAYE ZIMMER STATE of OREGON COUNTY of Mov-1 (5YL.) On this day of ~2016, this instrument was acknowledged before me by Faye Zimmer. Before me: Notary Publi~ ~ ' Print Name:Le.x'S6Y\. My Commission Expires: fv\oa:k1 J {p I~ SEAL: OFFIC IAL STAMP HEATHER MARIE PIERSON NOTARY PUBLIC • OREGON COMMISSION NO. 926319 MY COMMISSION EXPIRES MARCH 16,2018 20 ---PAGE BREAK--- ' AKS ENGINEERING & fORESTRY, LLC ~ 12965 SW Herman Road, Suite 100, Tualatin, OR 97062 AKS Job #1434 P: (503) 563-6151 F: (503)563"6152 ENGINEERING 8: FORESTRY _O_F.;.FI_CE..;.S_IN-: _TU_A_LA_T-IN.;.,-O.;.R -VA_N_C_O-UVE-R,-W-A S_A_LE_M--K-E-IZ-ER-, -OR EXHIBIT A Legal Description Boones Crossing Phase 3: Parcel2 ofPartition Plat No. 2005-29, Marion County Book of Partition Plats. Boones Crossing Phase 4: Parcel 1 of Partition Plat No. 2006-55, Marion County Book of Partition Plats. Boones Crossing Phase 5: Parcel2 of Partition Plat No. 2006-55, Marion County Book of Partition Plats. Boones Crossing Phase 6: Parcel3 of Partition Plat No. 2006-55, Marion County Book of Partition Plats. 12/13/2016 REGISTERED PROFESSIONAL LAND SURVEYOR RENEWS: .6 30 18 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---