RELEASE AGREEMENT
DATED: December ___, 2003
AMONG: THE CITY OF PORTLAND,
an Oregon municipal corporation
1221 SW Fourth Avenue
Portland, OR 97201 (the “City”)
MCCORMICK PIER CONDOMINIUM ASSOCIATION, an Oregon not-for-profit corporation
600 NW Naito Parkway
Portland, OR 97209 (the “Association”)
AND: MCCORMICK PIER, LLC
326 South Wilmot, Suite B230
Tuscon, AZ 85711 (“MP”)
MP acquired the property commonly known as the McCormick Pier Apartments located at 600 NW Naito Parkway, Portland, Oregon (the “Property”). MP has converted the Property to a condominium, including condominium units, common elements and three tracts of variable property, VP-1, VP-2 and VP-3. The Association governs the affairs of that condominium relating to the units and common elements. MP has control of the variable property. The condominium units, common elements and variable property is referred to herein as the “Property.”
The Association owns the property commonly known as the McCormick Pier Apartments located at 600 NW Naito Parkway, Portland, Oregon 97209 (the “Property”).
MP’s predecessor-in-interest (Norcrest China Company, an Oregon corporation) and the City of Portland entered into that Willamette River Greenway Trail Easement dated January 20, 1982 and recorded at Book 1574, page 1610, Multnomah County Records (the “Easement Agreement”). Pursuant to the Easement Agreement, MP’s predecessor granted to the City of Portland a perpetual and non-exclusive easement over a strip of land across the property approximately 8 feet wide and described in the Easement Agreement (the “Easement Area”). A portion of the Easement Area was improved with pilings, other structural elements and a public walkway (the “Improvements”).
Pursuant to Section 6 of the Easement Agreement: “The City shall assume responsibility for maintenance and repair of the Easement Area thereafter.” A dispute has arisen between the City and MP with respect to whether or not the City’s above-described maintenance obligation relates only to the submersible land over which the Easement Area exists or whether the maintenance obligation includes the Improvements.
The parties desire to settle this disagreement on the terms of this Release Agreement (the “Agreement”).
NOW, THEREFORE, in consideration of the mutual promises of the parties set forth in this Agreement, the parties agree as follows.
1. The parties agree to enter into two new easements, captioned “McCormick Pier Easement Agreements,” attached as Exhibit A. The parties agree to execute, deliver and record the McCormick Pier Easement Agreements immediately upon execution of this Agreement.
2. The City agrees to execute and to deliver the Promissory Note attached as Exhibit B. The City shall execute and deliver this Promissory Note to the Association immediately upon execution of this Agreement.
3. MP and the Association, for themselves and their successors-in-interest, assigns, grantees and vendees hereby forever and completely release the City of Portland and all of its officers, agents, bureaus and departments from any claim, loss or liability arising out of or related to the Easement Agreement and the City’s maintenance responsibilities as set forth in the Easement Agreement. The Association accepts the current condition of the Easement Area and the piers, structural elements and walkway located upon the Easement Area. Pursuant to the terms of the McCormick Pier Easement Agreement, the Association or its successors-in-interest, assigns, grantees or vendees agree to assume full responsibility, from and after the date of this Agreement, for all repair and maintenance of the Easement Area and the Improvements located upon the Easement Area and to defend, indemnify and hold the City harmless from any third-party claim arising out of or related to the design, construction, repair, maintenance or condition of the Easement Area and the Improvements.
4. The City agrees to take no action against MP or the Association on account of the current condition of the Improvements so long as the Association at its expense makes the repairs to the Improvements as described in the following plans and specifications submitted to the City’s Bureau of Buildings: S0.1, S2.1, S3.1, S7.2, S7.3, and S7.4 with a current reunion or issuance date of May 6, 2003, as those may be revised as required by the Bureau of Buildings, not later than December 31, 2003.
5. This Agreement constitutes the complete and final agreement of the parties with respect to the matters covered by this Agreement and supersedes or replaces all prior written or oral agreements.
6. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement to be effective as of the date first set forth above.
The Association: MCCORMICK PIER CONDOMINIUM ASSOCIATION
By:
Its:
City: CITY OF PORTLAND
By:
Its:
Approved as to form:
Office of the City Attorney
By:
Its:
MP: MCCORMICK PIER, LLC,
an Arizona limited liability company
By: McCormick Pier I, LLC
an Arizona limited liability company
an authorized signatory
By:
Phil Carroll, Member