EXHIBIT 10S
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REAL ESTATE PURCHASE AND
SALE AGREEMENT
between
REC RESOLUTION COMPANY
SELLER
AND
FRED MEYER, INC.
PURCHASER
Concerning property known as the
Hazel Dell Fred Meyer Development in Vancouver, Washington,
the Hawthorne Fred Meyer Development in Portland, Oregon,
and the Raleigh Hills Fred Meyer Development in
Washington County, Oregon
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TABLE OF CONTENTS
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Page
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1. PURCHASE AND SALE OF THE PROPERTIES . . . . . . . . . . .1
2. TOTAL PURCHASE PRICE. . . . . . . . . . . . . . . . . . .2
3. EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . . . .2
4. PRECONDITIONS TO PURCHASER'S OBLIGATIONS. . . . . . . . .2
4.1 Investigations and Contingency Period. . . . . . . .2
4.2 Title. . . . . . . . . . . . . . . . . . . . . . . .2
4.3 Hazardous or Toxic Materials . . . . . . . . . . . .3
4.4 No Material Changes. . . . . . . . . . . . . . . . .4
5. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . .4
6. LEGAL LOT . . . . . . . . . . . . . . . . . . . . . . . .4
7. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . .4
7.1 Closing Date . . . . . . . . . . . . . . . . . . . .4
7.2 Manner and Place of Closing. . . . . . . . . . . . .5
7.3 Prorations . . . . . . . . . . . . . . . . . . . . .5
7.4 Conveyance of Properties . . . . . . . . . . . . . .5
7.5 FIRPTA . . . . . . . . . . . . . . . . . . . . . . .5
7.6 Events of Closing. . . . . . . . . . . . . . . . . .5
7.7 Title Insurance. . . . . . . . . . . . . . . . . . .6
7.8 Lease. . . . . . . . . . . . . . . . . . . . . . . .6
8. REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . .6
8.1 Seller's Representations, Warranties
and Covenants. . . . . . . . . . . . . . . . . . . .6
8.2 Environmental Remediation - Raleigh Hills. . . . . .7
8.3 Purchaser's Representations and Warranties . . . . .9
9. CONDUCT UNTIL CLOSING; SELLER'S COOPERATION;
DISCLAIMER. . . . . . . . . . . . . . . . . . . . . . . .9
10. FAILURE TO CLOSE. . . . . . . . . . . . . . . . . . . . .9
10.1 Seller's Remedies. . . . . . . . . . . . . . . . . .9
10.2 Purchaser's Remedies . . . . . . . . . . . . . . . .9
11. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . .9
11.1 Binding Effect; Assignment . . . . . . . . . . . . .9
11.2 Time of Essence. . . . . . . . . . . . . . . . . . 10
11.3 Notices. . . . . . . . . . . . . . . . . . . . . . 10
11.4 Waiver . . . . . . . . . . . . . . . . . . . . . . 10
11.5 Attorneys' Fees. . . . . . . . . . . . . . . . . . 10
11.6 Prior Agreements . . . . . . . . . . . . . . . . . 10
11.7 Applicable Law . . . . . . . . . . . . . . . . . . 10
11.8 Brokers. . . . . . . . . . . . . . . . . . . . . . 11
11.9 Changes in Writing . . . . . . . . . . . . . . . . 11
11.10 Counterparts. . . . . . . . . . . . . . . . . . . 11
11.12 Survival. . . . . . . . . . . . . . . . . . . . . 11
11.13 Effect of Extensions and Modifications;
Backup Offers . . . . . . . . . . . . . . . . . . 11
11.14 Oregon Statutory Disclaimer . . . . . . . . . . . 11
11.15 Disclaimer; Duty to Disclose. . . . . . . . . . . 11
11.16 Representations; Condition of Properties. . . . . 12
11.17 Related Agreement . . . . . . . . . . . . . . . . 12
11.18 Certain Obligations . . . . . . . . . . . . . . . 12
12. APPROVAL BY SELLER. . . . . . . . . . . . . . . . . . . 12
EXHIBIT A-1 Legal Description of Hawthorne Property
EXHIBIT A-2 Legal Description of Hazel Dell Property
EXHIBIT A-3 Legal Description of Raleigh Hills Property
EXHIBIT B - Reports
EXHIBIT C - Form of Lease Assignment
REAL ESTATE PURCHASE AND SALE AGREEMENT
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(Hawthorne, Hazel Dell and Raleigh Hills)
This REAL ESTATE PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated as of March 10, 1995, between REC RESOLUTION
COMPANY, an Oregon corporation ("Seller"), and FRED MEYER, INC.,
a Delaware corporation, or its assign ("Purchaser"), recites and
provides as follows:
RECITALS
A. Seller, as successor to Fifth Avenue Corporation, owns
the real property located in Portland, Multnomah County, Oregon,
described in the attached Exhibit A-1 (the "Hawthorne Property").
The Hawthorne Property is currently leased by Seller to Real
Estate Properties Limited Partnership, an Oregon limited
partnership ("REPL"), pursuant to a lease agreement dated as of
February 5, 1963 (the "Hawthorne Master Lease"). REPL subleases
the Hawthorne Property to Fred Meyer, Inc., a Delaware
corporation, pursuant to a lease agreement dated as of
October 22, 1986 (the "Hawthorne Sublease").
B. Seller, as successor to Vanoak Corporation, owns the
real property located in Vancouver, Washington, described in the
attached Exhibit A-2 (the "Hazel Dell Property"). The Hazel Dell
Property is currently leased by Seller to REPL, pursuant to two
lease agreements dated as of October 2, 1962, and March 1, 1978
(collectively, the "Hazel Dell Master Lease"). REPL subleases
the Hazel Dell Property to Roundup Co., a Washington corporation,
pursuant to a lease agreement dated as of October 22, 1986 (the
"Hazel Dell Sublease").
C. Seller, as successor to Fourth Avenue Corporation, owns
the real property located in Washington County, Oregon, described
in the attached Exhibit A-3 (the "Raleigh Hills Property"). The
Raleigh Hills Property is currently leased by Seller to REPL,
pursuant to a lease agreement dated as of March 3, 1966 (the
"Raleigh Hills Master Lease"). REPL subleases the Raleigh Hills
Property to Purchaser pursuant to a lease agreement dated as of
October 22, 1986 (the "Raleigh Hills Sublease").
D. The Hawthorne Property, the Hazel Dell Property, and
the Raleigh Hills Property, together with all buildings and other
improvements located thereon and all rights and appurtenances
belonging thereto or in any way appertaining thereto and all
right, title and interest of Seller in and to any and all roads,
streets, alleys and ways, bounding such property are collectively
referred to herein as the "Properties." The Hawthorne Master
Lease, the Hazel Dell Master Lease and the Raleigh Hills Master
Lease are sometimes collectively referred to as the "Master
Leases." The Hawthorne Sublease, the Hazel Dell Sublease and the
Raleigh Hills Sublease are sometimes collectively referred to as
the "Subleases."
E. Seller desires to sell the Properties to Purchaser, and
Purchaser desires to purchase the Properties from Seller, on the
terms and conditions set forth in this Agreement.
Agreements
NOW, THEREFORE, for value received and in consideration
of the mutual promises set forth in this Agreement, the parties
agree as follows:
1. PURCHASE AND SALE OF THE PROPERTIES. Seller agrees to
sell the Properties to Purchaser, and Purchaser agrees to
purchase the Properties from Seller, on the terms and conditions
set forth in this Agreement.
2. TOTAL PURCHASE PRICE. The total purchase price for the
Properties is FIFTEEN MILLION FOUR HUNDRED FIFTY THOUSAND DOLLARS
($15,450,000). The purchase price is allocated among the various
portions of the Properties as follows:
Land Improvements Total
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Hazel Dell Property $1,133,600.00 $1,866,400.00 $3,000,000.00
Hawthorne Property $1,119,588.00 $1,880,412.00 $3,000,000.00
Raleigh Hills Property $2,918,820.00 $6,531,180.00 $9,450,000.00
3. EFFECTIVE DATE. The "Effective Date" for purposes of
this Agreement is the date that this Agreement is mutually
executed and delivered.
4. PRECONDITIONS TO PURCHASER'S OBLIGATIONS. The close of
escrow and Purchaser's obligation to purchase the Properties are
subject to the satisfaction, not later than the Closing Date
(unless otherwise provided), of the following conditions, and the
obligations of the parties with respect to such conditions are as
set forth in this Section 4. The conditions set forth in this
Section 4 are solely for the benefit of Purchaser and may be
waived only by Purchaser. Purchaser shall at all times have the
right to waive any condition. Such waiver or waivers shall be in
writing to Seller.
4.1 Investigations and Contingency Period. Purchaser
shall be satisfied, in its sole and absolute judgment, that the
Properties suit its needs (including, but not limited to, the
physical condition of the Properties, the zoning and other laws
and regulations applicable to the Properties, the available
access to public streets, utilities and infrastructure, and the
economic viability of the Purchaser's intended use) and Purchaser
shall have obtained such senior management and board of director
approvals of this transaction as Purchaser may deem necessary or
desirable. Purchaser shall have until the date 90 days after the
Effective Date (or until such earlier date as Purchaser may elect
in writing by waiving the right to terminate under this Section)
(the "Contingency Period") to determine whether the conditions
precedent set forth in this Section 4.1 have been satisfied or
waived. If Purchaser fails to notify Seller within the
Contingency Period that such conditions are waived or satisfied,
then this Agreement shall terminate and neither party shall have
any further obligations hereunder.
4.2 Title. At closing Seller shall convey fee simple
title to the Properties by special warranty deeds, subject to no
encumbrances created or suffered by Seller other than
nondelinquent real property taxes, and other matters which may be
approved in writing by Purchaser in accordance with this Section.
(a) Title Report, Survey, Etc. Purchaser shall
within 10 days after the Effective Date obtain current
preliminary title reports on the Properties, from First American
Title Insurance Company ("Title Company"). Purchaser shall also,
as promptly as possible and in any event within 45 days after the
Effective Date, obtain current ALTA surveys of the Properties
meeting Purchaser's survey requirements. The cost of the
surveyor's work will be paid by Purchaser.
(b) Title Approval Procedure.
(1) Within 20 days after receipt of all of
the title reports and surveys, Purchaser will review such
materials and notify Seller in writing of Purchaser's approval
(or disapproval) of any exceptions shown in the title reports,
other than an exception for current property taxes, and of such
surveys. Failure to notify Seller than an item is approved shall
be deemed to be disapproval of such item. In the event of such
disapproval: (i) Seller shall be obligated to remove (or commit
to remove) any disapproved lien or other financial encumbrance (a
"Lien"), at or prior to closing; and (ii) Seller agrees to exert
its best efforts to remove any other disapproved matter (but
Seller is not absolutely obligated to remove a disapproved matter
other than a Lien).
(2) Seller shall have 20 days from the date
that items are disapproved or deemed disapproved to eliminate any
disapproved title exceptions or survey matters (or as to any
Liens, to commit in writing to eliminate such Liens at or prior
to closing). If Seller is unable to eliminate a disapproved
title exception or survey matter within such twenty-day period,
despite Seller's best efforts to do so, either party may elect to
rescind this Agreement by notice to the other party within ten
days after the expiration of the twenty-day period. In such
event, all obligations of the parties under this Agreement shall
thereafter cease. Purchaser may preserve this Agreement,
however, if Purchaser notifies Seller within twenty days after
delivery of a notice of termination by Seller, that either:
(a) Purchaser waives its objection to the relevant
encumbrance(s); or (b) as to encumbrances that can be removed by
the payment of money, Purchaser intends at closing to pay the
amount necessary to remove such encumbrances. If Purchaser so
preserves this Agreement, this Agreement shall remain in full
force and effect, and Purchaser will receive a credit at closing
in the amount of any sum paid by Purchaser to remove such
encumbrances on title.
(3) As to any exceptions to title placed
of record or first identified after issuance of the preliminary
title report or revealed by any supplemental report, there shall
be a 10-day period for Purchaser to review and approve or
disapprove such exceptions on the same basis as provided above.
(4) With respect to the Raleigh Hills
Property, the parties are aware that boundary line questions in
three locations have been identified on a preliminary survey.
Seller shall use its best efforts to resolve such questions to
the satisfaction of Purchaser and the title company, such that
the title company will issue extended coverage title insurance
insuring the surveyed border of the Property without exception
for boundary line matters or encroachments. Purchaser shall
cooperate in such efforts. Final resolution of such matters to
Purchaser's satisfaction is a condition to Purchaser's obligation
to close.
4.3 Hazardous or Toxic Materials. Exhibit B sets
forth a complete list of all written soils, environmental or
other reports or studies in Seller's possession concerning any
hazardous waste or hazardous substances (as defined in Section
8.1) on, in or under the Properties or any underground storage
tanks on the Properties (collectively, the "Reports"). In
addition, Seller has made available to Buyer for inspection other
documents ("Environmental Documents") relating to hazardous
substances on, in or under the Property as further described in
Exhibit B. Seller has provided or will promptly provide complete
copies of the Reports and any other such reports discovered by
Seller after the date hereof. During the Contingency Period,
Purchaser will cause to be conducted such investigations or
audits of the environmental condition of the Properties as
Purchaser deems prudent. Purchaser will on request provide to
Seller copies of any reports prepared by third parties in
connection with such investigations or audits. In the event
that, prior to the Closing Date, any hazardous substances in
amounts or of kinds that violate or could give rise to liability
under environmental laws (as defined in Section 8.1) are
discovered on, in, or under any of the Properties, or any
underground storage tanks are discovered on any of the
Properties, Purchaser may elect, within ten days after learning
of the discovery of such matter, to terminate this Agreement by
notice to the Seller; provided, however, that Seller may preserve
this Agreement by notifying Purchaser (within 10 days after
receipt of the Purchaser's termination notice) that Seller
commits at its expense to perform any remediation necessary to
correct the problem to the satisfaction of Purchaser (in
Purchaser's discretion) and any governmental agency with
jurisdiction over the Properties, and the parties thereafter
document such remediation commitment in a manner acceptable to
Purchaser. If this Agreement is so terminated, the parties shall
thereafter have no further obligations under this Agreement.
4.4 No Material Changes. At the Closing Date, there
shall have been no material adverse changes in the condition of
or legal requirements applicable to the Properties (provided that
the condemnation activities affecting the Hazel Dell Property
referenced in Section 5.2 of this Agreement shall not be deemed a
material adverse change).
5. CONDEMNATION.
5.1 Subject to Section 5.2, if, prior to closing, any
part of the Properties is condemned or appropriated by public
authority or any party exercising the right of eminent domain, or
is threatened thereby, then this Agreement shall, at the election
of the Purchaser, become null and void. In the event the
Purchaser elects not to terminate this Agreement, the purchase
price shall not be affected, but Purchaser shall be entitled to
all proceeds of such award (or, if the award is made prior to
closing, Seller shall receive such proceeds but Purchaser shall
receive a credit against the purchase price in the net amount of
such proceeds). Seller will promptly notify Purchaser as to the
commencement of any such action or any communication from a
condemning authority that a condemnation or appropriation is
contemplated, and will cooperate with Purchaser in the response
to or defense of such actions, and permit Purchaser to
participate fully in, and approve any settlement of, any such
proceedings.
5.2 Purchaser acknowledges that proposals exist (1) to
close the access to the Hazel Dell Property from 78th Street, and
(2) to condemn a portion of the Hazel Dell Property in connection
with the construction of light rail facilities. Such
condemnation actions shall not constitute grounds to terminate
this Agreement. Purchaser and Seller agree to cooperate and
exert their best efforts to avoid closure of such access,
including, if Purchaser deems it appropriate, institution of
legal proceedings; provided, Seller shall not be required to
incur out of pocket costs in connection with such efforts.
Purchaser shall have the right to direct such efforts and
proceedings, and legal proceedings so instituted shall be at
Purchaser's expense. Proceeds from any such condemnation or
access closure shall be handled as provided in Section 5.1.
6. LEGAL LOT. If any of the Properties is not currently a
separate legal lot or lots and tax parcel(s), Seller (with the
cooperation of Purchaser) shall complete and obtain final
approval of any necessary plat, partition, lot line adjustment or
subdivision, so that as of closing the Property will be a
separate legal lot or lots and tax parcel or parcels. Any
conditions imposed in connection with such action must be
acceptable to Purchaser. The costs incurred will be paid by
Seller.
7. CLOSING.
7.1 Closing Date. This transaction will be closed
(the "Closing") on a date to be selected by Purchaser and
reasonably acceptable to Seller, but not later than 15 days after
expiration of the Contingency Period and not earlier than
March 1, 1995 (the "Closing Date").
7.2 Manner and Place of Closing. This transaction
will be closed by an escrow officer of First American Title
Insurance Company (or other Title Company selected pursuant to
Section 4.2) (the "Escrow Officer") at its office in Portland,
Oregon, or at such other place as the parties may mutually
select. Closing shall take place in the manner and in accordance
with the provisions set forth in this Agreement.
7.3 Prorations. There shall be no prorations of taxes
or expenses, as Purchaser or Purchaser's subsidiary is under the
Subleases responsible for taxes and expenses, and is entitled to
all income derived from, the Properties, other than rent owing
under the Master Leases. Rent owing under the Master Leases
shall be prorated as of 12:01 a.m. on the Closing Date, with
Seller entitled to such rents through such time and Purchaser
entitled to such rents commencing on the Closing Date and
thereafter.
7.4 Conveyance of Properties. Conveyance of the
Properties shall be by statutory special warranty deeds. All
municipal, county, state and federal transfer and documentary
stamp taxes shall be paid by Seller at the time of closing. The
conveyance shall be free from all liens and encumbrances of any
kind, without exceptions, unless otherwise specified herein or
approved pursuant to Section 4.2, and except for the lien of real
estate taxes not yet payable, so as to convey to Purchaser good
and marketable title to all the Properties. The conveyance will
be free of all tenancies other than (1) the rights of REPL
pursuant to the Master Leases, and the occupancy of Fred Meyer,
Inc., or Roundup Co., pursuant to the Subleases; and (2)
subleases, rental agreements or licenses in which Fred Meyer,
Inc., or its subsidiary is the sublessor, landlord or licensor.
Seller shall also assign to Purchaser its interest as lessor
under the Master Leases, pursuant to a lease assignment in the
form of Exhibit C. In addition, the parties will execute a
cross-easement agreement with respect to certain adjacent
property owned by Seller, in the form of Exhibit D, which shall
be a permitted encumbrance on title.
7.5 FIRPTA. Seller shall deliver to Purchaser at
closing an affidavit that Seller is not a "foreign person" under
FIRPTA, in form satisfactory to Purchaser.
7.6 Events of Closing. Provided the Escrow Officer
has received the sums and is in a position to cause the title
insurance policy to be issued as described below, this
transaction will be closed on the Closing Date as follows:
(a) Purchaser shall pay the total purchase price
for the Properties in immediately available funds, adjusted for
the charges and credits set forth in this section.
(b) Any liens or other encumbrances on title
required by this Agreement to be paid or removed by Seller at
closing shall be paid and satisfied or removed of record at
Seller's expense.
(c) Seller shall convey the real property to
Purchaser by special warranty deed(s), subject to no encumbrances
created or suffered by Seller other than the encumbrances
accepted pursuant to Section 4.2 and the lien for real estate
taxes not yet payable.
(d) Title Company will commit to issue the policy
described in Section 7.7, upon recordation of the closing
documents.
(e) The parties will execute any additional
documentation required with respect to the matters described in
Sections 7.4 and 7.5.
(f) The Escrow Officer will record the deed(s)
and the lease termination agreements, if any.
(g) The escrow fee shall be paid equally by the
parties. Any real estate excise or transfer tax will be paid by
Seller. The recording fees for the deeds will be paid by
Purchaser. Seller shall be charged with the premium (including
any sales or excise tax) for the title insurance policies to be
delivered to Purchaser, except that Purchaser shall be
responsible for the portion of the premium (including any sales
or excise tax) attributable to extended coverage if Purchaser
elects to obtain it, and for the cost of any endorsements
requested by Purchaser.
(h) There are no brokerage fees.
(i) If any other closing costs not specifically
provided for herein are due at closing of this transaction, each
party shall pay such closing costs as are normally and
customarily the responsibility of such party. In addition to any
other items required to be paid by either party pursuant to this
Agreement, each party shall pay its own attorneys' fees.
7.7 Title Insurance. As soon as possible after the
Closing Date, Seller shall cause the Title Company to furnish
Purchaser with a standard policy of title insurance in the amount
of the total purchase price for each property, in form acceptable
to Purchaser, subject only to exceptions for the matters accepted
by Purchaser pursuant to Section 4.2 or referenced in Section
7.4. At Purchaser's option, such policies shall be in ALTA
extended coverage form (full or partial), in which case Seller
and Purchaser will execute such affidavits as may be necessary to
obtain the extended coverage. Extra title premiums attributable
to extended coverage shall be Purchaser's expense.
7.8 Lease. If Purchaser elects to assign this
Agreement and the right to purchase the Properties to a third
party that will lease the Properties to Seller, the parties will
execute any additional documentation necessary to implement such
assignment and lease, provided that Seller shall not be required
to incur any additional expense or any material risk in
connection therewith.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1 Seller's Representations, Warranties and
Covenants. Seller represents and warrants to Purchaser that:
(a) To the Seller's actual knowledge and without
independent investigation, and except as disclosed on the
Reports: (1) there are no hazardous substances (as defined
below) on, within, under or upon the Properties, in amounts or of
kinds that in their current condition pose a threat to human
health or the environment or pose a risk of liability under
environmental laws (provided, however, that due to the age of the
improvements on the Properties, there may be asbestos containing
materials used in the construction of such improvements); and (2)
there are no underground storage tanks within the Properties.
Seller does hereby assign to Purchaser (effective at and as of
the Closing Date) any and all environmental warranties,
indemnification agreements and rights of action Seller may have
against third parties (if any) relating to the presence of any
such hazardous substances or underground tanks. As used in this
Agreement, the term "environmental laws" includes any and all
state, federal and local statutes, regulations, and ordinances to
which the Properties are subject and relating to the protection
of human health and the environment, as well as any judgments,
orders, injunctions, awards, decrees, covenants, conditions, or
other restrictions or standards relating to same; and the term
"hazardous substances" includes all hazardous and toxic
substances, wastes, or materials, including without limitation
all substances, wastes, and materials containing either
petroleum, including crude oil or any fraction thereof, or any of
the substances referenced in Section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601(14), and similar or comparable state or local laws.
(b) Except as disclosed to Purchaser in writing
(and other than the potential condemnation affecting the Hazel
Dell Property referenced in Section 5.2 above), Seller has
received no written notice of any condemnation, environmental,
zoning or other land-use regulation proceedings which would
detrimentally affect the use and operation of the Properties or
the value of the Properties, nor has Seller received notice of
any special assessment proceedings affecting the Properties.
(c) There is no litigation pending or to the
Seller's actual knowledge threatened against Seller that arises
out of the ownership of the Properties and would be binding on
the Purchaser or might detrimentally affect the use or operation
of the Properties for its intended purpose or the value of the
Properties or adversely affect the ability of Seller to perform
its obligations under this Agreement.
(d) The persons who have executed this Agreement
have been duly authorized to do so by Seller. All documents
delivered at closing will be executed by a duly authorized
person. Seller has a good and legal right to enter into this
Agreement and to perform all covenants of Seller contained in
this Agreement in accordance with its terms.
8.2 Environmental Remediation - Raleigh Hills. The
terms of this Section 8.2 shall apply only with respect to the
Raleigh Hills Property.
(a) The groundwater underneath the northeast
corner of the Raleigh Hills Property has been impacted by
petroleum related contamination that migrated from underground
storage tanks and related piping formerly located on Seller's
adjacent property (the "Flying A Property"). The scope of such
contamination (the "L.P. Bush Contamination") is set forth in the
environmental reports, studies and tests prepared by Hahn and
Associates (copies of which are in the possession of Joan Snyder
of Stoel Rives Boley Jones and Grey, Purchaser's counsel) and are
listed on Exhibit B. L.P. Bush Company (the former tenant of the
Flying A Property) is remediating the ground water contamination
pursuant to a groundwater treatment plan also in the possession of
Joan Snyder. Seller covenants that Seller shall diligently use
its best efforts to complete or cause to be completed the
remediation of the L.P. Bush Contamination, in a manner complying
with all applicable laws, at no cost to Purchaser. Such
remediation shall initially be conducted by Neal Shaw, subject to
monitoring by Hahn and Associates, or shall be conducted by Geo
Engineers, Inc. or another environmental consulting firm and/or
contractor reasonably acceptable to Purchaser. Such remediation
will be "complete" when Purchaser receives (1) a certification
from the consultant that the remediation is complete; and (2) a
so-called "no further action" letter from the Oregon Department
of Environmental Quality (DEQ), in form and substance reasonably
acceptable to Purchaser, and not conditioned on or requiring the
imposition of use restrictions or other institutional controls on
the Raleigh Hills Property. Upon receipt of such certification
and letter, Seller's obligations under this subsection shall be
deemed satisfied.
(b) The soils and groundwater underneath the
southern portion of the Raleigh Hills Property adjacent to
property currently leased to Union Oil of California ("Unocal")
and owned by Seller (the "Unocal Property") may be impacted by
petroleum related contamination that has migrated or is migrating
from underground storage tanks and related piping located on the
Unocal Property. Unocal is currently studying whether such
contamination has occurred. Seller has previously provided
Purchaser with copies of reports Seller has received from Unocal
discussing Unocal's investigation of petroleum contamination on
the Unocal Property and the Raleigh Hills Property; such reports
are listed on Exhibit B. Seller covenants that it shall
undertake and complete or cause to be undertaken and completed
the remediation of any contamination of the Raleigh Hills
Property (or the groundwater underneath the Raleigh Hills
Property) from petroleum related contamination that may have
migrated from the Unocal Property as of the Closing Date, or that
migrates from the Unocal Property after the Closing Date (the
"Unocal Contamination"). Such remediation must be conducted by
Unocal under the supervision of Geo Engineers, Inc, or an
environmental consulting firm and/or contractor reasonably
acceptable to Purchaser. Such remediation will be "complete"
when Purchaser receives (1) a certification from the consultant
that the remediation is complete; and (2) a so-called "no further
action" letter from DEQ, in form and substance reasonably
acceptable to Purchaser, and not conditioned on or requiring the
imposition of use restrictions or other institutional controls on
the Raleigh Hills Property. Upon receipt of such certification
and letter, Seller's obligations under this subsection shall be
deemed satisfied.
(c) Seller shall have a nonexclusive right of
entry onto the Raleigh Hills Property after Closing in order to
perform remediation activities necessary to comply with Seller's
obligations under subsections 8.2(a) and (b) above, including
without limitation the installation of groundwater wells and
treatment systems. Seller's remediation activities on the
Raleigh Hills Property shall be undertaken in such a manner as to
minimize interference with Purchaser's use and operation of the
Raleigh Hills Property, and the business operations of
Purchaser's tenants, and in any event shall not materially
restrict the access to, or the parking areas available for, any
building on the Raleigh Hills Property. All such activities
shall be conducted in strict accordance with applicable law.
Upon completion of its remediation activities (or, where
appropriate, any phase thereof), Seller shall restore or cause to
be restored the Raleigh Hills Property to substantially the
condition existing prior to such activities (including without
limitation proper capping and legal abandonment of any wells).
Seller shall indemnify, defend (with counsel reasonably approved
by Purchaser) and hold harmless Purchaser and its officers,
directors, employees, agents, successors and assigns from and
against any suits, actions, legal or administrative proceedings,
demands, claims, liabilities, fines, penalties, losses, injuries,
damages, costs (including the cost of complying with any judicial
or governmental order) and expenses (including attorneys' fees in
connection with any administrative proceeding, trial, appeal or
petition for review) arising out of or in any way connected with
Seller's remediation activities on the Raleigh Hills Property.
(d) With respect to environmental contamination
that is not covered by the provisions of subsections 8.2(a) and
(b) above, and except as limited by subsection 8.2(e) below with
respect to claims for diminution in value, nothing in this
Agreement either waives or alters any statutory or other remedy
at law available to any party.
(e) Purchaser hereby waives, releases, acquits
and forever discharges Seller and its officers, directors,
partners, employees, agents, and any other person acting on
behalf of Seller, from and against any and all claims, actions,
causes of action, demands, rights, damages expenses or
compensation whatsoever, for diminution in the value of the
Raleigh Hills Property caused by the presence of petroleum
related contamination in, on, underneath or adjacent to the
Raleigh Hills Property; provided, however, that such release of
claims for diminution in value shall not be construed to release
Seller from its obligations to complete the L.P. Bush
Contamination or the Unocal Contamination as set forth in
subsections 8.2(a) and (b) above. For purposes of this
paragraph, claims for diminution in value include claims arising
from difficulty of financing or selling the Raleigh Hills
Property.
(f) Seller shall not be in default of its
obligations set forth in subsections 8.2(a) and (b), in the event
Seller is unable to obtain the required no further action
letter(s) from DEQ becuase other governmental entities or other
third parties refuse to cooperate or to authorize Seller to take
the actions required by DEQ to obtain the no further action
letter(s).
8.3 Purchaser's Representations and Warranties.
Purchaser represents and warrants to Seller that the persons who
have executed this Agreement have been duly authorized to do so
by Purchaser (subject to the provisions of Section 4.1 and 12).
All documents delivered at closing will be executed by a duly
authorized person. Purchaser has a good and legal right to enter
into this Agreement and to perform all covenants of Purchaser
contained in this Agreement in accordance with its terms.
9. CONDUCT UNTIL CLOSING; SELLER'S COOPERATION;
DISCLAIMER. From the date of this Agreement until the Closing
Date, Seller shall cause all liens on the Properties incurred by
Seller to be paid current, and will not further mortgage or
encumber the Properties or increase the amount of any current
indebtedness on the Properties. No provision of this Agreement
or previous (or subsequent) conduct or activities of the parties
will be construed: (i) as making either party an agent,
principal, partner or joint venturer with the other party, (ii)
as creating any express or implied obligation for Purchaser to
operate the Properties as a Fred Meyer retail facility or
otherwise, or (iii) as making either party responsible for
payment or reimbursement of any costs incurred by the other,
whether or not such development occurs (except as may be
expressly set forth herein or in its attached exhibits). WHETHER
AND HOW PURCHASER MAY DEVELOP, REDEVELOP OR OPERATE THE
PROPERTIES POST-CLOSING IS AT PURCHASER'S DISCRETION. SELLER
WILL NOT HAVE ANY CLAIM AGAINST (OR RIGHT TO RECOVER ANY DAMAGES
OR COSTS FROM) PURCHASER IN THE EVENT PURCHASER DOES NOT DEVELOP,
REDEVELOP OR CONTINUE TO OPERATE THE PROPERTIES.
10. FAILURE TO CLOSE.
10.1 Seller's Remedies. In the event that this
transaction fails to close on account of Purchaser's fault or
inability to close, and Purchaser has not exercised any right to
terminate or rescind this Agreement as provided herein, Purchaser
shall pay to Seller the sum of $25,000 as full 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 hereby waives any right to
specific enforcement of this Agreement, and any right to sue for
damages (including lost profits or consequential damages) other
than the liquidated damages provided for in this Section. The
parties are initialing this Section for purposes of acknowledging
and agreeing to such exclusive remedy and liquidated damages
provision.
Initials of: Seller DWR Purchaser SLW
----- -----
10.2 Purchaser's Remedies. In the event that the
transaction fails to close on account of Seller's fault or
Seller's inability to deliver title acceptable to Purchaser
pursuant to Section 4.2, Purchaser shall be entitled to such
remedies for breach of contract as may be available under
applicable law, including (without limitation) the remedy of
specific performance, collection of damages, recovery of costs
and attorneys' fees.
11. GENERAL PROVISIONS.
11.1 Binding Effect; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties, and
their respective heirs, personal representatives, successors, and
assigns. Purchaser reserves the right to assign the right to
purchase the Properties to any third party at closing. Purchaser
also reserves the right to assign the Agreement at or prior to
closing to an entity that will lease the Properties to Purchaser.
Unless otherwise agreed, however, no such assignment shall
release Purchaser from its obligations under this Agreement, or
increase Seller's obligations in any respect.
11.2 Time of Essence. Time is of the essence of each
and every provision of this Agreement.
11.3 Notices. All demands or notices required or
permitted to be given under this Agreement shall be in writing.
Notices may be served by certified or registered mail, postage
paid with return receipt requested; by facsimile, or other
telecommunication device capable of transmitting or creating a
written record (provided that a copy is also sent by U.S. Mail,
first class); or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Telex
or telecommunicated notices shall be deemed delivered when
receipt is either confirmed by confirming transmission equipment
or acknowledged by the addressee or its office. Personal
delivery shall be effective when accomplished. Unless a party
changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the
following addresses:
Seller: REC RESOLUTION COMPANY
Suite 200
15115 SW Sequoia Parkway
Portland, OR 97224
Attn: Dave Ramus
Facsimile No.: (503) 624-7755
Purchaser: Fred Meyer, Inc.
P.O. Box 42121
Portland, Oregon 97242-0121
(Street Address -
3800 S.E. 22nd Avenue,
Portland, Oregon 97202)
Attn: Scott L. Wippel
Facsimile No.: (503) 797-3539
11.4 Waiver. Failure of either party at any time to
require performance of any provision of this Agreement shall not
limit the party's right to enforce the provision. Waiver of any
breach of any provision shall not be a waiver of any succeeding
breach of the provision or a waiver of the provision itself or
any other provision.
11.5 Attorneys' Fees. In the event suit or action is
instituted to interpret or enforce the terms of this Agreement or
to rescind this Agreement, the prevailing party shall be entitled
to recover from the other party such sum as the court may adjudge
reasonable as attorneys' fees at trial, on any appeal, and on any
petition for review, in addition to all other sums provided by
law.
11.6 Prior Agreements. This Agreement supersedes and
replaces all written and oral agreements previously made or
existing between the parties (including, without limitation, all
previous letters of intent and addenda thereto and all verbal
agreements and understandings).
11.7 Applicable Law. This Agreement shall be
construed, applied and enforced in accordance with the laws of
the State of Oregon (provided, as to the equitable remedies of
Purchaser with respect to the Hazel Dell Property, Washington law
shall apply).
11.8 Brokers. Each party will defend, indemnify, and
hold the other party harmless from any claim, loss, or liability
made or imposed by any other party claiming a commission or fee
in connection with this transaction and arising out of its own
conduct.
11.9 Changes in Writing. This Agreement and any of its
terms may only be changed, waived, discharged or terminated by a
written instrument signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
11.10 Counterparts. This Agreement may be executed
simultaneously or in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and
the same Agreement.
11.11 Invalidity of Provisions. In the event any
provision of this Agreement is declared invalid or is
unenforceable for any reason, such provision shall be deleted
from such document and shall not invalidate any other provision
contained in the document.
11.12 Survival. All representations, warranties and
obligations of the parties in this Agreement shall survive the
Closing Date and delivery of the deed contemplated in this
Agreement and be fully enforceable thereafter.
11.13 Effect of Extensions and Modifications; Backup
Offers. Any amendment to this agreement (including any extension
of time for waiver of conditions or closing) shall be deemed to
be a modification of the continuing existing agreement, rather
than a rescission or termination of such agreement. Seller will
not accept any "backup", "standby" or other additional offers to
purchase the Properties without Purchaser's written consent. In
any event, any such additional offer shall be subordinate to this
Agreement as it may be extended or modified.
11.14 Oregon Statutory Disclaimer. The following
disclaimer applies to the Hawthorne Property and the Raleigh
Hills Property: 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, WHICH,
IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING
A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR FOREST
PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING
OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO
THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY
PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE
PROTECTION FOR STRUCTURES.
11.15 Disclaimer; Duty to Disclose. As to any reports
or other materials provided by one party to the other party
herein, the party providing such reports or materials is not
warranting (and will not be liable or responsible for) the
accuracy, fitness or usability of such reports or materials or
any recommendations or conclusions stated therein. All
representations and warranties of the parties in this Agreement
are limited to the best of the party's actual knowledge, without
independent investigation or examination. If either party
obtains actual knowledge prior to the Closing Date of a fact
which would make any of the representations and warranties in
this Agreement false, such party will notify the other party of
such fact. A party will not be deemed in breach of a
representation or warranty in this Agreement or liable to the
other party for any claimed misrepresentation in this Agreement
after the Closing Date unless the party had actual knowledge on
the Closing Date that the representation or warranty was false
and failed to disclose to the other party the fact known to the
party which made the representation or warranty false.
11.16 Representations; Condition of Properties.
Purchaser or Purchaser's affiliate has heretofore operated and
occupied the Properties and has thoroughly and completely
examined and is fully aware of the physical condition of the
Properties as well as any governmental permits or approvals
required in connection with Purchaser's use of the Properties,
the suitability of the Properties for Purchaser's intended use,
the availability of utilities and services, the applicable
zoning, building, housing and other ordinances, restrictions,
laws, and regulations affecting the Properties or other matters.
Except as otherwise specifically set forth in this Agreement or
in any instrument delivered at Closing, Purchaser accepts the
land and property and all other aspects of the Properties in
their present condition, AS IS, without any representations or
warranties by Seller, expressed or implied. Purchaser
acknowledges that Purchaser has ascertained for itself the value
and condition of the Properties and Purchaser is not relying on,
nor has Purchaser been influenced by, any representation of
Seller regarding the value or condition of the Properties.
11.17 Related Agreement. Purchaser is party to a
Leasehold Assignment Agreement, dated on or about the date
hereof, pursuant to which Purchaser intends to acquire the
leasehold interest of REPL in the Properties (the "Related
Agreement"), which the parties thereto intend to close
simultaneously with closing under this Agreement. Purchaser's
obligation to close under this Agreement is subject to the
performance by REPL of REPL's obligations under the Related
Agreement, such that a simultaneous closing may occur. Seller's
obligation to close under this Agreement is subject to the
performance by Purchaser of Purchaser's obligations under the
Related Agreement, such that a simultaneous closing may occur.
11.18 Certain Obligations. Under the terms of the
Subleases, Purchaser is obligated to (i) maintain the Properties
(Paragraph 9.1) and (ii) cause the Properties to comply with all
legal requirements (Paragraph 6.2). In addition to Purchaser's
acknowledgment that it is accepting the Properties AS IS,
Purchaser hereby waives, releases, acquits and forever discharges
Seller and its officers, directors, partners, employees, agents,
and any other person acting on behalf of Seller, from any and all
claims, actions, causes of action, demands, rights, damages
expenses or compensation whatsoever, arising from any defects in
the Properties, to the extent such defects would have been
Purchaser's responsibility to remedy under the Subleases.
12. APPROVAL BY SELLER.
Seller will have until 5 p.m. (Pacific Time) on
March 21, 1995 in which to execute and return to Purchaser a
fully signed counterpart of this Agreement. Neither the delivery
of this Agreement to Seller for execution nor the delivery of any
signed Agreement to Purchaser will create a binding contract, or
contract by estoppel or otherwise, between the parties.
Purchaser will have 10 days after receipt of this Agreement
signed by Seller to execute and deliver or transmit (by facsimile
or otherwise) to Seller at its address hereunder a fully executed
counterpart of this Agreement, and if not executed and delivered
within such time period, this Agreement will be null and void and
neither party will thereafter have any obligation or liability to
the other party pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this
instrument to be duly executed as of the date set forth above.
SELLER: REC RESOLUTION COMPANY, an Oregon corporation
By: DAVID W. RAMUS
---------------------------------------
Title: David W. Ramus
-------------------------------
Date Executed: 3/13/95
-----------------------
PURCHASER: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
---------------------------------------
Scott L. Wippel, Senior Vice President
---------------------------------------
Date Executed: 3/14/95
-----------------------
EXHIBIT A-1
-----------
Legal Description - Hawthorne Property
PARCEL I:
- --------
Lots 1-16, inclusive, Block 1, SUNNYSIDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon. TOGETHER WITH
that portion vacated of SE Madison Street which inured thereto by
reason of Ordinance vacating SE Madison Street recorded
December 4, 1970 in Book 762, page 1551.
PARCEL II:
- ---------
Lots 1-16, inclusive, Block 2, SUNNYSIDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon.
EXCEPT the East 12 feet of Lots 8 and 9 of said Block 2, described
in deeds to the City of Portland, recorded October 16, 1962 in
Book 2139, page 424 and Book 2139, page 428.
TOGETHER WITH that portion of vacated SE Madison Street which
inured thereto by reason of Ordinance vacating SE Madison Street
recorded December 4, 1970 in Book 762, page 1551.
EXHIBIT A-2
-----------
Legal Description - Hazel Dell Property
PARCEL I
- --------
BEGINNING at an iron pipe set at the Northeast corner of Lot 20,
Alexander Tracts in the Northeast quarter of Section 10, Township
2 North, Range 1 East, Willamette Meridian; thence South 5 59'15"
West along the East line of said Lot 20 a distance of 111.00 feet
to a railroad spike marking the Southeast corner thereof; thence
South 88 degrees 17'00" West along the South line of said Lot 20,
a distance of 292.01 feet to the East right of way line of SR 5;
thence North 1 degree 43'00" West along the East right of way
line of said SR 5 a distance of 110.00 feet to the North line of
said Lot 20; thence North 88 degrees 17'00" East along the North
line of said Lot 20 a distance of 306.90 feet to the point of
beginning.
PARCEL II
- ---------
That portion of the Northeast quarter of the Northeast quarter of
Section 10, Township 2 North, Range 1 East of the Willamette
Meridian, in Clark County, Washington, described as follows:
BEGINNING at a point that is South 89 degrees 05' West 71.35 feet
and South 5 degrees 59'15" West 284.33 feet fron the Northeast
corner of said Section 10, said point of beginning also being
on the Westerly line of N.E. Highway 99; thence continuing South
5 degrees 59'l5" West along the Westerly line of said N.E.
Highway 99, a distance of 823.54 feet to the Northeast corner of
the Alexander Tract, according to the plat thereof, recorded in
Volume "E" of Plats, page 1 records of said County; thence South
88 degrees 17'00" West along the North line of said Alexander
tracts, a distance of 306.90 feet to the Easterly right of way
line of Primary State Highway No. 1 as conveyed to the State of
Washington by deed recorded under Auditor's File No. G 200257;
thence North 3 degrees 45' East along said Easterly right of way
line to an inner corner in said Easterly line; thence North
88 degrees 27'15" East 11.10 feet to the West line of that
tract conveyed to Vanoak Corporation by deed recorded under
Auditor's File No. G 628799; thence South 12 degrees 42'15"
East along the West line of said Vanoak tract, a distance
of 76.72 feet to the Southwest corner thereof; thence North
89 degrees 04' East along the South line of said Vanoak tract,
134.36 feet to the Southeast corner thereof; thence South
5 degrees 59'l5" West along the Southerly extension of the
East line of said Vanoak tract, 126.76 feet; thence South
84 degrees 00'45" East 180.00 feet to the point of beginning.
PARCEL III
- ----------
That certain portion of the Northeast quarter of the Northeast
quarter of Section 10, Township 2 North, Range 1 East, Willamette
Meridian in the County of Clark and State of Washington, more
particularly described as follows:
BEGINNING at a point that is South 46.88 feet and West 422.41
feet fron the Northeast corner of said Section 10, said point
being the intersection of the Southerly line of N.E. 78th Street
and the Easterly line of Primary State Highway No. 1 and running
thence South 12 degrees 42'15" East 96.71 feet; thence North
89 degrees 05' East 134.36 feet; thence North 5 degrees 59' East
98.26 feet to the Southerly line of N.E. 78th Street; thence
South 88 degrees 05'15" West, along said Street, 165.96 feet to the
point of beginning.
EXCEPTING from the above described Parcel III the North 10 feet
thereof conveyed to Clark County, Washington, a municipal
corporation by deed recorded June 17, 1985, as Auditor's File
No. 8506170112.
EXHIBIT A-3
-----------
Legal Description - Raleigh Hills Property
A tract of land located in Section 13, Township 1 South, Range 1
West of the Willamette Meridian, in the County of Washington and
State of Oregon, and more particularly described as follows:
Commencing at the intersection of the Southerly line of the
Beaverton Hillsdale Highway (County Road No. 669) and the West
line of the Northeast quarter of the said Section 13, which
intersection is on the Westerly line of that tract of land
conveyed to Harry M. Baker and wife by deed recorded in Deed Book
288, page 103, Washington County Deed Records; thence South
01 degrees 24'40" West along the Westerly line of the said Baker
tract a distance of 204.68 feet to the Southeast corner of that
tract of land conveyed to Portland Federal Savings and Loan
Association by that Warranty Deed recorded in Deed Book 459,
page 264, Washington County Deed Records, and the true point of
beginning of this description; thence South 01 degrees 24'40"
West along the West line of the said Baker tract a distance of
63.32 feet to the Southwest corner thereof; thence South 01
degrees 24'40" West along the West line of that tract of land
conveyed to George Krueger and wife by deed recorded in
Book 229, page 651, Washington County Deed Records, a distance
of 184.60 feet to an angle point therein and to the most
Easterly Southeast corner of that tract of land leased to
United States National Bank of Oregon, as described in that
Memorandum of Lease recorded in Book 646, page 295, Washington
County Deed Records; thence South 27 degrees 04'50" West along
the Southerly line thereof, a distance of 66.70 feet to the most
Southerly Southeast corner thereof; thence South 75 degrees 43'50"
West a distance of 60.00 feet to the Southwest corner thereof;
thence 155.22 feet along the arc of a 1,145.92 foot radius circular
curve to the left (long chord is 153.11 feet and bears South
41 degrees 50'43" East) to a point of compound curve; thence
168.03 feet along the arc of a 174.50 foot radius circular
curve to the left (long chord is 161.98 feet and bears South
72 degrees 32'32" East) to a point in the Northwesterly line
of SW Scholls Ferry Road, said point being South 56 degrees
16'30" West a distance of 23.33 feet from the Southwesterly line
of the said Krueger tract; thence Southwesterly along the
Northwesterly line of SW Scholls Ferry Road, South 56 degrees
16'30" West a distance of 74.38 feet to the most Easterly corner
of that tract of land conveyed to the State of Oregon by deed
recorded in Book 430, page 45, of the Washington County Deed
Records; thence South 61 degrees 21'30" West along the
Northwesterly line of the said State of Oregon tract a distance
of 293.40 feet to an angle point therein; thence North 77 degrees
08'30" West along the Northerly line, thereof, a distance of
64.00 feet to an angle point therein; thence South 56 degrees
16'30" West along the Northwesterly line thereof, a distance
of 40.00 feet to an angle point therein; thence South 04 degrees
41'30" West along the West line, thereof, a distance of 16.09 feet
to the most Easterly corner of that tract of land leased to the
Union Oil Company of California as described in that lease
recorded in Book 502, page 456, of the Washington County Deed
Records; thence North 33 degrees 43'30" West along the Northeasterly
line, thereof, a distance of 44.63 feet to the most Northerly
corner thereof; thence South 55 degrees 16'30" West along the
Northwesterly line thereof, a distance of 153.50 feet to the
most Westerly corner thereof; thence South 33 degrees 43'30"
East along the Southwesterly line, thereof, a distance of
5.84 feet to the most Easterly Northeast corner of that tract
of land conveyed to CAY, Incorporated, an Oregon corporation,
as described in Book 511, page 494 of the Washington County
Deed Records; thence along the Northeast line of the said
CAY, Incorporated tract 100.21 feet along the arc of a
100.00 foot radius circular curve to the right (long chord
is 96.07 feet and bears North 66 degrees 51'10" West) to a
point of tangency; thence North 38 degrees 08'40" West
along the East line of the said CAY, Incorporated tract, a
distance of 394.78 feet to an angle point therein; thence
North 88 degrees 39'20" West along the North line, thereof,
a distance of 87.05 feet to a point on the West line of
that tract of land conveyed to Hollywood Company as described
in Book 439, page 706 of the Washington County Deed Records;
thence North 01 degrees 41'20" East along the West line of the
said Hollywood Company tract a distance of 618.03 feet to the
South line of the said Beaverton Hillsdale Highway; thence South
88 degrees 32'40" East along said South line a distance of
710.00 feet to a point that is 100.00 feet West of the West line
of the Northeast quarter of the said Section 13; thence South
01 degrees 24'40" West parallel to and 100.00 feet West of
said Baker Westerly line a distance of 204.88 feet to the
Southwest corner of the said Portland Federal Savings and Loan
Association tract; thence South 88 degrees 32'40" East along the South
line of the said Portland Federal Savings and Loan Association
tract a distance of 100.00 feet to the true point of beginning of
this description.
EXCEPTING THEREFROM that portion as described in deed to
Washington County, a political subdivision of the State of
Oregon, recorded August 27, 1990 as Fee No. 90-46313.
EXHIBIT B
---------
RALEIGH HILLS FLYING A SERVICE STATION
7550 SW Beaverton-Hillsdale Highway
Portland, Oregon
1. A Report on Underground Storage Tank Decommissioning and
Soil Cleanup, dated March 1, 1993.
2. A Report on Third Quarter Groundwater Monitoring, dated
March 22, 1993.
3. A Report on Additional Subsurface Investigation, dated
January 21, 1994.
RALEIGH HILLS UNOCAL SERVICE STATION
l. Report of Remedial Action dated December 22, 1989.
2. Site Contamination Study dated November 9, 1990.
3. Drywell Removal Report dated July 15, 1992.
4. Results of Quarterly Ground Water Monitoring dated October
1992, February 1994, April 1994, and August 1994.
EXHIBIT C - LEASE ASSIGNMENT FORM
---------------------------------
RECORDING REQUESTED
BY AND WHEN RECORDED
RETURN TO:
_______________________
P.O. Box 42121
Portland, Oregon 97242
Attn: RTC MO/CLD
LEASE ASSIGNMENT AGREEMENT
This Lease Assignment Agreement (this "Agreement"), dated as
of _______________, between REC RESOLUTION COMPANY, an Oregon
corporation whose address is Suite 200, 15115 SW Sequoia Parkway,
Portland, OR 97224 ("Assignor"), and ______________________, a
Delaware corporation, whose address is ____________________
("Assignee"), recites and provides as follows:
FOR good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby
sells, assigns, transfers, conveys and delivers to Assignee all
of Assignor's right, title and interest in and to each of the
lease agreements referenced on Exhibit A hereto (the "Lease
Agreements"). The rights conveyed hereby are referred to herein
as the "Leasehold Interests".
Assignee hereby accepts the foregoing assignment. Assignee
agrees to assume Assignor's obligations under the Lease
Agreements, provided, however, that Assignee does not assume, and
Assignor shall remain fully responsible for, and agrees to
discharge, any obligations or liabilities under such Lease
Agreements that either (i) are not disclosed on the face of the
copies of such Lease Agreements provided by Assignor to Assignee,
or (ii) accrued or arose from or out of a set of facts existing
prior to the date hereof ("Assignor's Liabilities"). Assignee
will indemnify, defend and hold harmless Assignor from and
against liabilities, costs, expenses and damages, including
attorneys' fees, arising from Assignee's failure to perform its
obligations hereunder, except for liabilities that arise from
Assignor's failure to perform its obligations hereunder or to
discharge Assignor's Liabilities. Assignee assumes no
liabilities or obligations of Assignor of any nature whatsoever,
whether or not accrued or affixed, absolute or contingent, known
or unknown, determined or determinable, or incurred prior to, on
or after the Closing Date.
Assignor represents, warrants and covenants to and with
Assignee that: (1) Assignor has good and indefeasible title to
the Leasehold Interests, subject to no encumbrances created or
suffered by Assignor other than the matters identified on Exhibit
B hereto; (2) Assignor has the full right, power and authority to
assign the Leasehold Interests to Assignee in accordance
herewith; and (3) Assignor will defend Assignee's right, title
and interest in and to the Leasehold Interests from and against
any claim by, through or under Assignor.
This Agreement shall bind and inure to the benefit of, and
be enforceable by, the parties hereto and their respective
successors, heirs, and permitted assigns. This Agreement may be
executed in any number of counterparts, all of which taken
together shall constitute one agreement binding on all the
parties. Each party agrees, at the request of the other party,
at any time and from time to time after the date hereof, to
execute and deliver all such further documents, and to take and
forbear from all such action, as may be reasonably necessary or
appropriate in order more effectively to perfect the transfers of
rights contemplated herein or otherwise to confirm or carry out
the provisions of this Agreement.
EXECUTED effective the date first written above.
[signature and acknowledgment forms]
EXHIBIT D - EASEMENT AGREEMENT
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RECORDING REQUESTED |
BY AND WHEN RECORDED |
RETURN TO: |
|
FRED MEYER, INC. |
P.O. Box 42121 |
Portland, Oregon 97242 |
Attn: RTC MO/CLD |
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CROSS EASEMENT AGREEMENT
DATE: ___________________
PARTIES: __________________________, a Delaware corporation
("Buyer"), whose address is _________________, as owner
of the property described in Exhibit "A," attached
hereto and incorporated herein by this reference
("Buyer's Property");
AND: REC RESOLUTION COMPANY, an Oregon corporation ("REC"),
whose address is Suite 200, 15115 SW Sequoia Parkway,
Portland, OR 97224, as owner of the property described
in Exhibit "B," attached hereto and incorporated herein
by this reference ("REC's Property").
RECITALS:
The parties to this agreement intend to create permanent,
mutual, reciprocal easements and a mutual right-of-way for access
purposes. Such easements shall be appurtenant to and shall
benefit Buyer's Property and REC's Property. For purposes of
this agreement, references to "Property" mean Buyer's Property or
REC's Property, as the context may require. Buyer and REC, and
their respective successors and assigns, are sometimes referred
to as "Owners" for purposes of this Agreement. The parties
therefore agree as follows.
AGREEMENTS:
SECTION 1. GRANT OF EASEMENTS; ESTABLISHMENT OF RIGHT-OF-WAY
1.1 The parties hereby grant and convey to each other
permanent mutual reciprocal rights-of-way on, over, across, and
along the real property described in Exhibits "A-1" and "B-1",
attached hereto and incorporated herein by this reference. Such
easements shall form a continuous right-of-way as described in
Exhibits "A-1" and "B-1." Buyer hereby specifically grants to
REC such easement rights respecting the property described in
Exhibit "A-1," which shall be appurtenant to and benefit Parcel
B. REC reciprocally grants to Buyer such easement rights
respecting the property described in Exhibit "B-1," which shall
be appurtenant to and benefit Parcel A. The property subject to
the easements created hereby is sometimes referred to below as
the "Easement Property".
1.2 Such easements and right-of-way may be used for
vehicular and pedestrian ingress and egress purposes by the
parties to this agreement. Neither party shall have the right to
park, load or unload any vehicle in the right-of-way, other than
under emergency conditions. Use of the right-of-way shall be on
a regular, continuous, nonexclusive, nonpriority basis,
benefiting the parties, their successors, assigns, lessees,
mortgagees, invitees, guests, customers, agents and employees.
However, neither party's rights hereunder shall lapse in the
event of that party's failure to use the easement and right-of-
way on a continuous basis.
SECTION 3. MAINTENANCE AND REPAIR; TAXES AND INSURANCE
3.1 The cost of periodic maintenance and necessary repairs
to the Easement Property shall be borne exclusively by Buyer as
to the property described in attached Exhibit "A-1" and
exclusively by REC as to the property described in attached
Exhibit "B-1." Such maintenance and repairs shall be performed
by the respective parties on a prompt, diligent and regular basis
in accordance with the generally accepted street and road
maintenance standards then existing under the laws of Washington
County, Oregon, including but not limited to prompt patching or
filling of damage to the pavement and resurfacing at least every
10 years. Required maintenance shall include the removal of
snow, ice and debris as soon as practicable after their
occurrence.
3.2 Subject to paragraph 3.3 below, if a party fails to
perform any such necessary maintenance and repairs as required,
the other party, upon 15 days' prior written notice to the
nonperforming party, may cause such work to be done with a right
of reimbursement for all sums necessarily and properly expended
to remedy such failure. If the nonperforming party fails to pay
such reimbursement on demand, the party causing such work to be
done shall have the immediate right to record a lien against the
nonperforming party's property benefited by this agreement. The
parties agree that such lien shall be treated as a construction
lien pursuant to ORS Chapter 87, subject to foreclosure and
priority as set forth in the construction lien statutes.
3.3 If the Easement Property becomes impassable or ingress
or egress is unreasonably impeded or curtailed because of a
party's failure to maintain the Easement Property as required
herein, the other party may demand by written notice that
remedial work be performed immediately. If such work is not so
performed the other party shall have the rights of cure,
reimbursement and lien as set forth in paragraph 3.2.
3.4 Each party shall pay when due all real property taxes,
assessments or other charges against the land to which each party
holds fee title and which is part of the Easement Property.
There shall be no right of contribution from the other party for
such items.
SECTION 4. DECISION MAKING
Whenever the consent or approval of any Owner is required,
such consent or approval shall be exercised only in the following
manner. The Owners (if consisting of more than one [1] person)
of a Property shall agree among themselves and designate in
writing to the Owners and of the other Property a single person
who is entitled to cast the vote for that Property. If the
Owners of any such Property cannot agree who shall be entitled to
cast the single vote of that Property, or if the Owners fail to
designate the single person who is entitled to cast the vote for
that Property within thirty (30) days after receipt of request
for same from any Owner, then the Owner that owns the largest
portion of that Property shall be entitled to vote, and the
exercise of such right in good faith shall be binding on all
other Owners of that Property.
SECTION 5. CONDEMNATION
5.1 In the event that the Easement Property or any part
thereof is taken by power of eminent domain, or is conveyed under
threat of condemnation and such taking will render the Easement
Property unusable for vehicular ingress and egress, this
agreement shall terminate. If such taking does not render the
Easement Property so unusable, the obligations of a the parties
shall be abated to the extent of such taking, but this agreement
shall otherwise continue in full force and effect.
5.2 The net proceeds from a condemnation or taking shall be
allocated to the Owner of the property taken.
5.3 No Owner shall voluntarily agree to close the access
from the Easement Property to the adjoining public street without
the consent of all Owners. If any governmental authority, by
condemnation or otherwise, eliminates or reduces any access
between a public street and the Easement Property, the Owner
thereof shall make every reasonable effort to obtain alternative
access from such Owner's property to the public street.
SECTION 6. EFFECT OF THE AGREEMENT
The easement granted hereunder shall run with the land as to
all property burdened and benefited by such easement, including
any division or partition of such property. The rights,
covenants and obligations contained in this agreement shall bind,
burden and benefit each party's successors and assigns, lessees,
mortgagees (or beneficiaries under a deed of trust) as to REC's
Property or Buyer's Property, or any portion thereof, as the case
may be.
SECTION 7. MISCELLANEOUS
This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof. This
Agreement may only be amended in writing signed by all Owners
(provided, if either REC's Property or Buyer's Property has more
than one Owner, then the person entitled to cast the Property's
vote under Section 6 shall be authorized to execute an amendment
on behalf of all Owners of such Property), and any such amendment
must be recorded in the real estate records of Washington County,
Oregon, in order to be effective.
[Signature Lines]
[Acknowledgments]
Exhibits: A Buyer's Property
A-1 Easement Property on Buyer's Property
B REC's Property
B-1 Easement Property on REC's Property