1 2 3 4 5 6 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MARION Civil Department 7 8 9 10 11 12 13 14 15 CREEKSIDE HOMEOWNERS ASSOCIATION, INC., an Oregon non-profit corporation, v. Plaintiff, CREEKSIDE GOLF COURSE, LLC, an Oregon limited liability company, d/b/a CREEKSIDE GOLF CLUB; CREEKSIDE GOLF OPERATIONS, LLC, also d/b/a CREEKSIDE GOLF CLUB, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. COMPLAINT (Declaratory Judgment - CCR's; Breach of Covenant - Anticipatory; Quiet Title - Equitable Servitude; Injunctive Relief; Attorney Fees) Filing fee of $252 per to ORS 21.135 CLAIMS NOT SUBJECT TO MANDATORY ARBITRATION 16 Plaintiff for its Complaint alleges as follows: 17 1. 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Creekside Homeowners Association, Inc. (herein, as appropriate, either "Plaintiff" or "the Association") is an Oregon non-profit corporation, having as its members lot owners in the Creekside PUD, which is authorized to initiate litigation pursuant to ORS 94.630 in matters that affect the common interest of the owners. PAGE 1 COMPLAINT 2. The Association is subject to the Oregon Planned Community Act, ORS 94, et seq., where not in direct conflict with the recorded declaration of covenants, conditions and restrictions governing the Association. 3. The Association was formed in conjunction with the development of a residential planned urban community ("Creekside PUD") and real estate subdivision platted in Marion County, VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Oregon, generally located in the southwest area of the City of Salem. Creekside PUD consists of 16 separate platted phases, and 2 re-plats of portions of two prior phases, all known as: 1) Golf Club Estates at Creekside P.U.D. -- Phase 1; 2) Golf Club Estates at Creekside P.U.D. -- Phase 2; 3) Golf Club Estates at Creekside Phase 4 P.U.D.; 4) Golf Club Estates at Creekside Phase 5 P.U.D.; 5) Golf Club Estates at Creekside Phase 6 P.U.D.; 6) Golf Club Estates at Creekside Phase 6A P.U.D.; 7) Golf Club Estates at Creekside Phase 6 P.U.D. a Replat of Lots 217 through 220 and Common Area; 8) Golf Club Estates at Creekside Phase 7 P.U.D.; 9) Golf Club Estates at Creekside Phase 8 P.U.D.; 10) Re-Plat of Lots 349 and 350 Golf Club Estates at Creekside Phase 8 P.U.D.; 11) Golf Club Estates at Creekside Phase 9 P.U.D.; 12) Golf Club Estates at Creekside Phase 10 P.U.D.; 13) Golf Club Estates at Creekside Phase 11 P.U.D.; 14) Golf Club Estates at Creekside Phase 12 P.U.D.; 15) Golf Club Estates at Creekside Phase 13 P.U.D.; 16) Fairway One at Creekside P.U.D.; 17) EcoWest at Creekside P.U.D.; and 18) Skyline at Creekside. At present, there are 588 developed single family homes located within all 18 of these plats of the Creekside PUD. At present, development within some of the later phases continues. PAGE 2 COMPLAINT 4. Creekside Golf Course is real property consisting of an 18-hole golf course, inclusive of fairways, greens, tee-boxes, driving range, clubhouse, and service buildings, collectively called "the Course," adjoining, interspersed, and fully-encircled by and among the residential lots of the Association. There are approximately 136 acres, more or less, underlying the Course. The VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Creekside Golf Course real property has at all relevant times been owned and operated by the Creekside PUD developer, its successors-in-interest, and now, the Defendants, and is further contained within the legal description attached hereto as "Exhibit A" to be incorporated herein by this reference. PAGE 3 COMPLAINT 5. Defendant Creekside Golf Course, LLC, an Oregon limited liability company, is the present owner of the Course. Defendant Creekside Golf Course, LLC, does business as or otherwise holds itself out as "Creekside Golf Club." In addition to others, Creekside Golf Course, LLC, is the successor-in-interest to the developer of Creekside PUD, the promoters of the Association, and the sellers of residential lots therein to Association members. 6. Upon information and belief, there are now members of Creekside Golf Course, LLC, who either were or are presently shareholders or partners in the predecessor-in-interest entities that developed Creekside PUD, promoted the Association, and the sold residential lots therein to Association members or building contractors for subsequent sale to Association members. 7. Defendant Creekside Golf Operations, LLC, an Oregon limited liability company, is the present operator of the Course. Defendant Creekside Golf Operations, LLC, also does business as or otherwise holds itself out as "Creekside Golf Club." Upon information and belief, Defendant Creekside Golf Operations, LLC has either a contractual relationship with Defendant Creekside Golf Course, LLC or has ownership in common with Defendant Creekside Golf Course, LLC, such that two entities together control, manage and operate the Course. 8. Defendants' predecessors-in-interest to the Course represented, promised, developed and sold lots in the Creekside PUD as part of "the Jewel of the Willamette Valley'' and as neighboring an "18-hole golf course." Advertised amenities included the use, views and common benefits of residing adjacent to, and interspersed with a high quality golf course, and open space, which enhanced the quality and livability for Association members in the Creekside PUD. VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 9. The Creekside PUD, the Association, and the Course are all governed by that certain instrument titled "Declaration of Covenants, Conditions and Restrictions of Golf Course Estates at Creekside," which was recorded in the Real Property Records of Marion County, State of Oregon, on August 26, 1992, as Book 982, Page 273 (hereinafter "Creekside Covenant"). A true and correct copy of the Creekside Covenant is attached hereto as "Exhibit B" to be incorporated herein by this reference. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 For its First Claim for Relief, Plaintiff alleges: FIRST CLAIM FOR RELIEF - DECLARATORY RELIEF 10. Plaintiff realleges and incorporates the allegations of paragraphs 1 through 9 herein. (Count One - Creekside Covenant) 11. Except for the Creekside Covenant, there is no recorded instrument setting forth the rights, title and beneficial interest, if any, of the Plaintiff to the Defendants' real property described in "Exhibit A". Pursuant to ORS 28.020, Plaintiff seeks a declaration of Plaintiff's and Defendants' rights and obligations under the Creekside Covenant. 12. Plaintiff seeks a declaration from the Court that the Creekside Covenant provides for the following express restrictions concerning the Course, and further creates enforceable rights benefitting Plaintiff: 23 (a) The present owner -- and any and all successive owners -- of the Course are 24 bound by the Creekside Covenant; 25 26 (b) (c) The boundary lines of the Course cannot be altered; By implication of the covenant prohibiting alteration of the Course boundary 27 28 lines, the real property underlying the Course cannot be subdivided; PAGE 4 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 (d) The maintenance, upkeep and repair of all portions of the real property and 2 improvements sited on the Course are the sole responsibility of the owner of the Course; 3 (e) The perpetual existence of a golf course on the real property underlying the 4 Course is provided for; 5 6 7 (f) on the Course; (g) The owner of the Course is required to maintain the appearance of a golf course The owner of the Course has only the right to modify the layout (configuration) of 8 9 the golf course, and cannot eliminate the golf course from the real property underlying the Course; and 10 (h) The owner of the Course must perpetually operate a golf course on the real estate 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 underlying the Course. The declarations sought by Plaintiff herein are consistent with the course of dealing of the parties, the terms of the Creekside Covenant and the rights of Plaintiff and Defendants, or their predecessors-in-interest, thereunder. PAGE 5 COMPLAINT 13. An actual justiciable controversy exists regarding the parties' rights and interests under both the Creekside Covenant and in the Course. Defendant Creekside Golf Course, LLC and Defendant Creekside Golf Operations, LLC each contend they have the right to terminate the Course, cease operations and to develop the real property underlying the Course into residential housing. Defendants have made numerous public statements regarding their belief in their rights to this end and their intention to develop the Course for some purpose other than an 18-hole golf course. By and through Defendants' authority, applications have previously been filed with the City of Salem seeking to subdivide the Course in order to develop housing on the Course. Despite the assertions made by Defendants, Plaintiff is entitled to a decree and judgment from the Court in its favor, as set forth in paragraph 12, above. 14. Plaintiff has suffered damage due to the actions of Defendants including, but not limited to, attorney fees actually incurred. Plaintiff is entitled to its reasonable attorney fees pursuant to VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Article XV, Section 2 of the Creekside Covenant. Plaintiff is additionally entitled to supplemental relief pursuant to ORS 28.080. (Count Two - Equitable Servitude) 15. A case and controversy exists between the Plaintiff and Defendants in that Plaintiff claims it is the beneficial owner of an equitable servitude that burdens the Defendants' real property described in "Exhibit A," so that the Association may continue as a "golf course community," having as amenities the use, views and common benefits of residing adjacent to and interspersed in a high quality, operating 18-hole golf course, clubhouse, and driving range, and the Defendants' claims that the Plaintiff has no beneficial right, title or interest in such real property, except as set forth in the Creekside Covenant. 16. The rights, title and beneficial interest of Plaintiff in Defendants' real property, if any, has not been determined, is uncertain, and a declaratory judgment setting forth those rights, title and beneficial interest, if any, will terminate the controversy and remove the uncertainty. 17. Plaintiff is entitled to a judgment declaring it possesses a right, title, and beneficial interest in the Course on Defendants' real property such that, for Plaintiff s non-exclusive benefit, the Defendants' real property may only be used as an 18-hole championship golf course, driving range, and golf clubhouse, together with such existing amenities of like character and quality. 18. If the Court grants the declaratory relief sought herein, the Court should order that a special master be appointed to resolve any disputes concerning the maintenance and operation of the 18-hole championship golf course, clubhouse and driving range. /// /// 28 /// PAGE 6 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 For its Second Claim for Relief, Plaintiff alleges: SECOND CLAIM FOR RELIEF - ANTICIPATORY BREACH OF COVENANT 19. Plaintiff realleges and incorporates the allegations of paragraphs 1 through 9, and paragraphs 11 through 18, herein. (Count 1 Alteration of Golf Course Boundaries) 20. At all material times herein, Defendant Creekside Golf Course, LLC was and is now the owner or reputed owner of the fee simple title in and to the Course described in Exhibit A. 21. Title to the Course was conveyed to Defendant Creekside Golf Course, LLC by deed recorded February, 21, 2002, as Instrument No. 19060396 in the Marion County records. 22. The Creekside Covenant specifically declares certain restrictions and obligations which apply to Defendants as owners of the Course. Article VII, Section 2 of the Creekside Covenant binds the golf course and all owners thereof to all provision of the Creekside Covenant appertaining to the golf course and related facilities. 23. Pursuant to the Creekside Covenant, Plaintiff was created as a homeowners association to enforce the provisions of the Creekside Covenant, as well as the Bylaws and rules and regulations of Plaintiff. 24. Article VII, Section 3 of the Creekside Covenant provides that no modification, expansion or, contraction of the golf course shall occur which shall alter the boundary lines of the golf course property. /// /// 28 /// PAGE 7 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 25. Defendants plans to shut down the golf course and develop the Course, including, but not limited to, Hole No. 14, constitutes anticipatory repudiation and breach of Article VII, Section 3 of the Creekside Covenant. 26. Association is entitled to its reasonable attorney fees pursuant to Article XV, Section 2 of the Creekside Covenant. 27. Association is entitled to an order from the Court requiring Defendants to perform their obligations under the Creekside Covenant and enjoining the owner of the Course from pursuing any alteration of the boundary lines. (Count 2 Golf Course Maintenance) 28. Article III, Section 4 of the Creekside Covenant places sole responsibility for the maintenance, upkeep and repair of out-of-bounds areas within the golf course realty upon the owner of the Course. 29. Article VII, Section 4 of the Creekside Covenant obligates the owner of the golf course to reasonably maintain the appearance of the golf course and related facilities and to reasonably maintain any streams, ponds or lakes on the golf course so as to deter the reproduction of mosquitoes and other noxious insects. 30. Defendants plan to shut down the golf course constitutes anticipatory repudiation and breach of Article III, Section 4 and Article VII, Section 4 of the Creekside Covenant. 31. Association is entitled to an order from the Court requiring Defendants to perform their obligations under the Creekside Covenant and enjoining the owner of the Course from ceasing 28 PAGE 8 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 irrigation, landscaping, and other commonly accepted forms of golf course maintenance for an 18-hole championship golf course. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 For its Third Claim for Relief, Plaintiff alleges: THIRD CLAIM FOR RELIEF -- QUIET TITLE 32. Plaintiff realleges and incorporates the allegations of paragraphs 1 through 9, paragraphs 11 through 18, and paragraphs 20 through 31, herein. (Count One- Equitable Servitude by Estoppel) 33. Plaintiff claims an interest in the Course, although not in actual possession of the Course. 34. Defendants have publically announced their intention to cease operating and maintaining the Course effective on or about April 30, 2016. Based upon these very public representations by Defendants' agents, it is reasonable for Association to believe that Defendants will in fact stop operating the Course. Defendants have also threatened to, and have otherwise represented their intention to, terminate the use, operations, views, open space, common benefits and existence of the Course by engaging in one or more of the following acts: 19 (a) Ceasing to maintain and operate the 18-hole course, fairways, greens, tee-boxes, 20 driving range and clubhouse; 21 (b) Engaging in development activities to design, convey, re-plat, and sever 22 residential lots that would remove parcels from the Course; 23 (c) Starting plans for the development and pursuing subdivision applications for 24 25 development of residential lots upon fairways, tee-boxes and greens including the No. 14 fairway; 26 (d) Threatening to terminate irrigation, landscaping and all other maintenance for the 27 Course, which would make impossible the use of fairways, tee-boxes and greens No. 1 through 28 No.18 for golf course purposes; and PAGE 9 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 (e) Threatening to cause and allow waste and disrepair to occur on the Course. 35. 3 4 5 6 7 8 9 10 11 Plaintiff claims it is the beneficial owner of an equitable servitude that burdens the Defendants real property so that the Association may continue as a "golf course community" having as amenities the use, views and common benefits of residing adjacent to and interspersed in a high quality operating golf course, clubhouse, and driving range. 36. Pursuant to ORS 105.605 the court may determine the adverse and conflicting interests of the parties. 37. Plaintiff claims that the above-referenced equitable servitude exists by estoppel in that: 12 (a) Defendants and their predecessors-in-interest, by their advertisements and 13 14 15 marketing, encouraged and permitted Association members to purchase, occupy and use residential lots in reasonable reliance upon representations that they were purchasing lots in the high quality "jewel of the Willamette Valley" "18-hole golf course community." 16 (b) Such representations made it foreseeable that Association members would not 17 18 have purchased, occupied or used such residential lots believing that the common benefit of residing in a "golf course community" would be revoked; and 19 20 (c) Injustice can only be avoided by the establishment of such servitude. 21 22 23 24 25 In the alternative to Count One, Plaintiff further alleges: (Count Two - Equitable Servitude from Implied General Plan) 38. Plaintiff claims that the above-referenced equitable servitude exists by implication from a general plan of development in that: 26 (a) Development of Creekside PUD and the Course were part of a general plan of 27 28 development by Defendants to create a "golf course community;" PAGE 10 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 (b) Each lot within the Association is the implied beneficiary of all express and 2 implied servitudes imposed to carry out the general plan; 3 (c) Conveyances by Defendants' predecessors-in-interest to Association members 4 5 6 included express servitudes upon the common areas of Association, including, but not limited to, the easements described in Article XIII, Section 4 of the Creekside Covenant, to implement the general plan of development of a "golf course community;" 7 (d) The Creekside Covenant provides that a golf course and related facilities shall 8 exist on the real property described in "Exhibit A". 9 (e) By implication, the general plan of development and various conditions contained 10 11 within the Creekside Covenant created an implied reciprocal servitude burdening the real property described in "Exhibit A"; and 12 (f) Injustice can be avoided only by reciprocally implying the above-referenced 13 equitable servitude. 14 15 16 17 18 19 In the alternative to Counts One and Two, Plaintiff further alleges: (Count Three - Equitable Servitude by Implication) 39. Plaintiff claims that the above-referenced equitable servitude exists by implication in that: 20 (a) Prior to the sale of lots to Association members, Creekside PUD and the Course 21 22 were jointly owned by Defendants' predecessor-in-interest, Hawaii Northwest Ventures Limited Partnership; 23 (b) The Course has previously been used for the common benefit of Association 24 25 26 27 members to reside in a "golf course community" - in part forming the basis for the members to purchase their homes and fostering greater market value and demand for those member's homes - and the Course was used by the Defendants' predecessors-in-interest to market and sell lots to Association members; 28 PAGE 11 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 (c) At the time of lot sales to Association members, the parties had reasonable 2 3 4 grounds to expect that any future conveyances or development would not terminate the right of Association members to the views and open space created by the Course, and the continuation of golf course operations on the Course; 5 (d) Defendants' current efforts to develop parcels from the Course and intention to 6 7 8 discontinue operations of an 18-hole golf course are contrary to the reasonable expectations of the members of the Association to enjoy the common benefit of residing in a "golf course community;" 9 (e) The prior use as a course was not merely temporary or casual, and the existence of 10 11 such prior use is apparent and a material part of the reason Association members purchased lots from Defendants' predecessors-in-interest; and 12 (f) Continuation of the Course is reasonably necessary to enjoyment of the 13 Association members previously and commonly benefited by such prior use. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In the alternative to Counts One, Two and Three, Plaintiff further alleges: (Count Four- Equitable Servitude by Necessity) 40. Plaintiff claims that the above-referenced equitable servitude exists by necessity in that a development of lots from the Course by Defendants would deprive the Association members of rights necessary to reasonable enjoyment of the lots conveyed to them in Creekside PUD by Defendants' predecessors-in-interest. 41. Plaintiff has no plain, speedy, or adequate remedy at law. /// /// /// /// 28 /// PAGE 12 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 For its Fourth Claim for Relief, Plaintiff alleges: FOURTH CLAIM FOR RELIEF -- WASTE; PERMANENT INJUNCTION 42. Plaintiff realleges and incorporates the allegations of paragraphs 1 through 9, paragraphs 11 through 18, paragraphs 20 through 31, and paragraphs 33 through 41, herein. 43. Plaintiff is the beneficial owner of an equitable servitude that burdens the Defendants' real property. 44. Defendants' threatened activities and plans to terminate the use, operations, views, common benefits and existence of the golf course from the real property underlying the Course, as set forth above, will cause waste, substantial damage to, and destruction of Plaintiff's equitable servitude and upon the beneficial interest in the real property. 45. Any further action beyond mere preparation by Defendants' of subdivision and housing development activities on the Course threatens to and will produce immediate and irreparable harm to Plaintiff s property interest in the real property. 46. Any further action beyond mere threatened closure of the golf course and related facilities by Defendants threatens to and will produce immediate and irreparable harm to Plaintiff s property interest in the real property. 47. Plaintiff lacks a plain, speedy or adequate remedy at law. 48. Plaintiff is entitled to a permanent injunction prohibiting the Defendants, their agents and representatives, and any of their successors-in-interest from engaging in one or more of the following activities: 28 PAGE 13 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 (a). Failing to maintain and water the Course, including the 18-holes of fairways, 2 greens, tee-boxes and the driving range site; 3 4 5 6 7 8 9 (b) Course; (c) Course; (d) the Course; (e) Seeking any lot-line adjustments or subdivision to remove parcels from the Making any land use applications to alter the use of parcels located within the Tearing out the driving range, fairways, greens, tee-boxes, or any other portion of Conducting any development or construction of residential lots upon fairways and 10 11 greens, or upon the driving range; (f) Failing to water fairways, tee-boxes and greens No. 1 through No. 18; 12 13 14 15 (g) (h) (i) Allowing the Course to fall into disrepair; Ceasing operation of the 18-hole Course; and Such other relief as is equitable and just. 49. 16 17 18 19 20 21 22 Plaintiff is entitled to a preliminary injunction to restrain Defendants, their agents and representatives, and any of their successors-in-interest from engaging in the above-referenced activities pending disposition of the Plaintiff s application for permanent relief. 50. Plaintiff is entitled to a permanent injunction compelling the Defendants, their agents and representatives, and any of their successors-in-interest, their agents and representative, and any of their successors-in-interest to engage in each of the following activities: 23 24 (a) (b) Watering the 18-hole Course, fairways, greens, tee-boxes and driving range site; Withdrawing any development applications to subdivide, remove parcels from the 25 Course, or otherwise alter the boundary lines of the Course; 26 (c) Withdrawing and terminating any land use applications to alter the use of real 27 28 property located within the Course; PAGE 14 COMPLAINT VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 (d) the Course; (e) Maintaining the driving range, fairways, greens, tee-boxes, or any other portion of Maintaining operations of the 18-hole championship golf course on the real 4 property underlying the Course; 5 (f) Doing any act or omission that is contrary to the proper operation of the golf 6 7 course, driving range, and clubhouse or in any other way contrary to the rights established in Plaintiff by the equitable servitude set forth; and 8 9 (g) Such other relief as is equitable and just. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHEREFORE, Plaintiff demands and prays for relief as follows: (1) On Plaintiff's First Claim for Relief, a judgment declaring that Plaintiff possesses a right, title and beneficial interest in Defendants' real property such that, for Plaintiff s nonexclusive benefit, the Defendants real property may only be used as an 18-hole championship golf course, clubhouse and driving range; (2) On Plaintiff's Second Claim for Relief, a judgment declaring Defendants to have committed an anticipatory breach of covenant of their obligations under the Creekside Covenant, and enjoining Defendants from further breach as more fully prayed for in Plaintiff's Fourth Claim for Relief; (3) On Plaintiff's Third Claim for Relief, a decree quieting title to an equitable interest in Defendants' real property to provide that Plaintiff is the beneficial owner of an equitable servitude that runs with the land to burden the Defendants' real property so Creekside may continue as a "golf course community" having as amenities the use, views and common benefits of residing adjacent to and interspersed in a high quality, operating 18- hole golf course, clubhouse, and driving range; (4) On Plaintiff's Fourth Claim for Relief, a permanent injunction and preliminary injunction restraining Defendants, their agents, representatives, and successors-in-interest from: 27 (a) Failing to maintain and water the Course, including the 18-holes of 28 PAGE 15 COMPLAINT fairways, greens, tee-boxes and the driving range site; VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 5 6 7 8 (b) (c) (d) (e) Seeking any lot-line adjustments or subdivision to remove parcels from the Course; Making any land use applications to alter the use of parcels located within the Course; Tearing out the driving range, fairways, greens, tee-boxes, or any other portion of the Course; Conducting any development or construction of residential lots upon fairways and greens, or upon the driving range; 9 (f) Failing to water fairways, tee-boxes and greens #1 through #18; 10 11 12 (g) (h) (i) Allowing the Course to fall into disrepair; Ceasing operation of the 18-hole Course; and Such other relief as is equitable and just; 13 14 (5) Plaintiff is entitled to a permanent injunction compelling the Defendants, their agents, representatives, and successors-in-interest to engage in each of the following activities: 15 16 17 18 19 20 21 22 23 24 25 26 27 (a) (b) (c) (d) (e) (f) Watering the 18-hole Course, fairways, greens, tee-boxes and driving range site; Withdrawing any development applications to subdivide, remove parcels from the Course, or otherwise alter the boundary lines of the Course; Withdrawing and terminating any land use applications to alter the use of real property located within the Course; Maintaining the driving range, fairways, greens, tee-boxes, or any other portion of the Course; Maintaining operations of the 18-hole championship golf course on the real property underlying the Course; Doing any act or omission that is contrary to the proper operation of the golf course, driving range, and clubhouse or in any other way contrary to the rights established in Plaintiff by the equitable servitude set forth; and 28 (g) PAGE 16 COMPLAINT Such other relief as is equitable and just; and VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
1 2 3 4 (6) For a judgment against Defendants for Plaintiff's reasonable attorney fees, costs and disbursements incurred herein, plus post-judgment interest thereon at the statutory rate of nine percent (9.0%); and (7) For such other relief the Court deems just and equitable. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated this 25th day of April, 2016. PAGE 17 COMPLAINT VIAL FOTHERINGHAM LLP /s/ T. Beau Ellis T. Beau Ellis, OSB #093437 Christopher M. Tingey, OSB # 014326 17355 SW Boones Ferry Road, Suite A Lake Oswego, OR 97035 T: (503) 684-4111 F: (503) 598-7758 E: beau.ellis@vf-law.com E: cmt@vf-law.com Of Attorneys for Plaintiff Trial Attorney(s): T. Beau Ellis, OSB #093437 Christopher M. Tingey, OSB # 014326 VIAL FOTHERINGHAM LLP 17355 SW Boones Ferry Rd., Suite A Lake Oswego, OR 97035 Phone: 503-684-4111 Fax: 503-598-7798 P14722-003
Exhibit "A" Real property in the County of Marion, State of Oregon, described as follows: A TRACT OF LAND LYING IN SECTION 21 AND 22, TOWNSHIP 8 SOUTH, RANGE 3 WEST WILLAMETTE MERIDIAN, MARION COUNTY, OREGON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A 5/8" IRON ROD AT THE SOUTHWEST CORNER OF LOT 31, OF FAIRWAY ONE AT CREEKSIDE P.U.D., AS RECORDED IN VOLUME 40, PAGE 113, MARION COUNTY BOOK OF TOWN PLATS; THENCE ALONG THE ARC OF A 384.34 FOOT RADIUS CURVE RIGHT (LONG CHORD: SOUTH 71 17'02" WEST 244.91 FEET) 249.26 FEET TO A 5/8" IRON ROD; THENCE NORTH 89 16'48" WEST 484.45 FEET TO A 5/8" IRON ROD; THENCE ALONG THE ARC OF A 316.00 FOOT RADIUS CURVE LEFT (LONG CHORD: SOUTH 71 47'32" WEST 205.01 FEET) 208.78 FEET TO A 5/8" IRON ROD; THENCE SOUTH 0 42'45" WEST 261.68 FEET TO A 5/8" IRON ROD; THENCE SOUTH 25 28'45" WEST 220.80 FEET TO A 5/8" IRON ROD; THENCE NORTH 78 22'34" EAST 45.25 FEET TO A 5/8" IRON ROD; THENCE NORTH 87 20'20" EAST 138.72 FEET TO A 5/8" IRON ROD; THENCE SOUTH 78 35'55" EAST 195.13 FEET TO A 5/8" IRON ROD; THENCE SOUTH 49 06'28" EAST 114.75 FEET TO A 5/8" IRON ROD; THENCE SOUTH 57 48'26" EAST 61.27 FEET TO A 5/8" IRON ROD; THENCE SOUTH 74 08'58" EAST 83.08 FEET TO A 5/8" IRON ROD; THENCE SOUTH 71 56'44" EAST 148.23 FEET TO A 5/8" IRON ROD; THENCE NORTH 84 19'03" EAST 108.68 FEET TO A 5/8" IRON ROD; THENCE NORTH 25 33'32" EAST 112.74 FEET TO A 5/8" IRON ROD; THENCE NORTH 72 10'12" EAST 116.08 FEET TO A 5/8" IRON ROD; THENCE SOUTH 23 44'18" EAST 98.82 FEET TO A 5/8" IRON ROD; THENCE SOUTH 42 16'07" EAST 124.87 FEET TO A 5/8" IRON ROD; THENCE SOUTH 77 41'12" EAST 120.21 FEET TO A 5/8" IRON ROD; THENCE SOUTH 65 36'24" EAST 93.59 FEET A 5/8" IRON ROD; THENCE SOUTH 56 53'07" EAST 157.13 FEET TO A 5/8" IRON ROD; THENCE SOUTH 50 37'56" EAST 170.84 FEET TO A 5/8" IRON ROD; THENCE SOUTH 19 37'49" EAST 87.01 FEET TO A 5/8" IRON ROD: THENCE SOUTH 8 22'21" EAST 191.71 FEET A 5/8" IRON ROD; THENCE SOUTH 3 30'40" EAST 223.95 FEET TO A 5/8" IRON ROD; THENCE SOUTH 15 18'08" WEST 153.91 FEET TO A 5/8" IRON ROD; THENCE SOUTH 17 10'35" WEST 215.42 FEET TO A 5/8" IRON ROD; THENCE SOUTH 0 16'14" EAST 140.29 FEET TO A 5/8" IRON ROD; THENCE SOUTH 2 54'38" WEST 160.64 FEET TO A 5/8" IRON ROD; THENCE SOUTH 4 01'07" WEST 190.05 FEET TO A 5/8" IRON ROD; THENCE SOUTH 74 11'23'' EAST 113.38 FEET TO A 5/8" IRON ROD; THENCE NORTH 53 47'34" EAST 63.68 FEET TO A 5/8" IRON ROD; THENCE NORTH 35 04'06'' EAST 201.75 FEET TO A 5/8" IRON ROD; THENCE NORTH 33 41'07" EAST 86.01 FEET TO A 5/8" IRON ROD; THENCE NORTH 68 00'58" EAST 254.26 FEET TO A 5/8" IRON ROD; THENCE NORTH 35 09'39" EAST 80.97 FEET TO A 5/8" IRON ROD; THENCE NORTH 50 11'52" EAST 145.50 FEET TO A 5/8" IRON ROD; THENCE NORTH 51 49'55" EAST 96.23 FEET TO A 5/8" IRON ROD; THENCE NORTH 65 15'50" EAST 238.94 FEET TO A 5/8" IRON ROD; THENCE NORTH 77 04'10" EAST 336.11 FEET TO A 5/8" IRON ROD; THENCE NORTH 77 51'16" EAST 205.32 FEET TO A 5/8" IRON ROD; THENCE NORTH 70 43'37" EAST 183.22 FEET TO A 5/8" IRON ROD; THENCE SOUTH 51 40'45" EAST 177.18 FEET TO A 5/8" IRON ROD; THENCE SOUTH 78 12'14" EAST 249.56 FEET TO A 5/8" IRON ROD; THENCE NORTH 81 18'38" EAST 168.19 FEET TO A 5/8" IRON ROD; THENCE NORTH 74 30'48" EAST 73.75 FEET TO A 5/8" IRON ROD; THENCE NORTH 78 31'16" EAST 206.68 FEET TO A 5/8" IRON ROD; THENCE SOUTH 62 48'47" EAST 229.55 FEET TO A 5/8" IRON ROD; THENCE SOUTH 70 40'21" EAST 191.57 FEET TO A 5/8" IRON ROD; THENCE SOUTH 89 00'25" EAST 96.35 FEET TO A 5/8" IRON ROD; THENCE NORTH 66 00'52" EAST 160.61 FEET TO A 5/8" IRON ROD; THENCE NORTH 33 54'31" EAST 36.06 FEET TO A 5/8" IRON ROD; THENCE SOUTH 78 00'31" EAST 87.95 FEET TO A 5/8" IRON ROD; THENCE SOUTH 28 38'07" EAST 53.54 FEET TO A 5/8" IRON ROD; THENCE SOUTH 20 35'32" EAST 104.39 FEET TO A 5/8" IRON ROD; THENCE SOUTH 34 41'09" EAST 158.04 FEET TO A 5/8" IRON ROD; THENCE SOUTH 38 20'59" EAST 167.28 FEET TO A 5/8" IRON ROD; THENCE SOUTH 186.19 FEET TO A 5/8" IRON ROD ON THE EAST-WEST CENTERLINE OF SAID SECTION 22; THENCE ALONG SAID EAST-WEST CENTERLINE SOUTH 89'38'12" EAST 651.20 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF SUNNYSIDE ROAD; THENCE ALONG SAID RIGHT-OF- WAY LINE AS FOLLOWS: NORTH 36 24'26" WEST 309.20 FEET; THENCE NORTH 24 18'49" WEST 255.71 FEET; THENCE ALONG THE ARC OF A 1109.84 FOOT RADIUS CURVE RIGHT (LONG CHORD: EXHIBIT A 1 of 5
NORTH 16 23'47" WEST 305.74 FEET) 306.71 FEET; THENCE NORTH 8 28'46" WEST 320.52 FEET; THENCE SOUTH 81 31'14" WEST 12.00 FEET; THENCE NORTH 8 28'46" WEST 29.81 FEET TO A 5/8" IRON ROD; THENCE LEAVING SAID RIGHT-OF-WAY LINE WEST 156.99 FEET TO A 5/8" IRON ROD; THENCE NORTH 23 42'40" WEST 250.35 FEET TO A 5/8" IRON ROD ON THE SOUTHERLY RIGHT-OF- WAY OF LINE OF CREEKSIDE DRIVE AS SHOWN ON THE RECORDED PLAT OF GOLF CLUB ESTATES AT CREEKSIDE P.U.D.-PHASE I IN VOLUME 40, PAGE 21, SAID BOOK OF TOWN PLATS; THENCE ALONG THE SOUTHERLY LINE OF SAID PHASE I AS FOLLOWS: ON THE ARC OF A 493.52 FOOT RADIUS CURVE RIGHT) LONG CHORD: NORTH 56 36'07" WEST 165.77 FEET) 166.56 FEET TO A 5/8" IRON ROD; THENCE NORTH 46 56'00" WEST 300.11 FEET TO A 5/8" IRON ROD; THENCE SOUTH 43 04'00" WEST 100.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 46 56'00" WEST 162.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 50 38'35" WEST 74.38 FEET TO A 5/8" IRON ROD; THENCE NORTH 59 23'54" WEST 75.66 FEET TO A 5/8" IRON ROD; THENCE NORTH 68 18'21" WEST 76.54 FEET TO A 5/8" IRON ROD; THENCE NORTH 76 22'54" WEST 75.88 FEET TO A 5/8" IRON ROD; THENCE NORTH 85 31'00" WEST 240.00 FEET TO A 5/8' IRON ROD TO THE SOUTHWEST CORNER OF LOT 31, SAID PHASE I, BEING ALSO THE SOUTHEAST CORNER OF LOT 63, OF GOLF CLUB ESTATE AT CREEKSIDE P.U.D.-PHASE 2, IN VOLUME 40, PAGE 94, SAID BOOK OF TOWN PLATS; THENCE ALONG THE SOUTHERLY LINE OF SAID PHASE 2 AS FOLLOWS: NORTH 85 31'00" WEST 320.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 85 40'18" WEST 80.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 87 55'41" WEST 80.00 FEET TO A 5/8" IRON ROD; THENCE SOUTH 89 09'08" WEST 80.00 FEET TO A 5/8" IRON ROD; THENCE SOUTH 86 13'58" WEST 80.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 88 52'15" WEST 80.61 FEET TO A 5/8" IRON ROD; THENCE SOUTH 87 26'34" WEST 80.16 FEET TO A 5/8" IRON ROD; THENCE NORTH 88 18'20" WEST 80.75 FEET TO A 5/8" IRON ROD; THENCE SOUTH 88 40'44" WEST 166.84 FEET TO A 5/8" IRON ROD; THENCE NORTH 72 10'24" WEST 36.94 FEET TO A 5/8" IRON ROD; THENCE NORTH 6 08'05" WEST 55.00 FEET TO A 5/8" IRON ROD AT THE NORTHWEST CORNER OF LOT 75, SAID PHASE 2, BEING ALSO IN THE SOUTHERLY LINE OF SAID FAIRWAY ONE AT CREEKSIDE P.U.D.; THENCE ALONG THE SOUTHERLY LINE OF SAID FAIRWAY ONE AS FOLLOWS: SOUTH 83 51'55" WEST 132.63 FEET TO A 5/8" IRON ROD; THENCE ALONG THE ARC OF A 336.92 FOOT RADIUS CURVE RIGHT (LONG CHORD: NORTH 87 31'30" WEST 100.87 FEET) 101.25 FEET TO A 5/8" IRON ROD; THENCE ALONG THE ARC OF A 252.25 FOOT RADIUS CURVE LEFT (LONG CHORD: NORTH 80 14'32" WEST 11.67 FEET) 11.67 FEET TO A 5/8" IRON ROD; THENCE SOUTH 11 59'22" EAST 77.91 FEET TO A 5/8" IRON ROD; THENCE SOUTH 78 00'38" WEST 150.80 FEET TO A 5/8" IRON ROD; THENCE NORTH 74 48'07" WEST 797.03 FEET TO A 5/8" IRON ROD; THENCE NORTH 73 09'22" WEST 352.71 FEET TO A 5/8" IRON ROD; THENCE NORTH 64 24'35" WEST 52.61 FEET TO A 5/8" IRON ROD; THENCE NORTH 76 15'53" WEST 52.08 FEET TO A 5/8" IRON ROD; THENCE NORTH 75 02'58" WEST 156.62 FEET TO A 5/8" IRON ROD; THENCE NORTH 68 23'54" WEST 22.31 FEET TO A 5/8" IRON ROD; THENCE NORTH 13 02'28" WEST 88.66 FEET TO A 5/8" IRON ROD; THENCE NORTH 27 35'33" WEST 70.60 FEET TO A 5/8" IRON ROD; THENCE NORTH 85 00'15" WEST 64.45 FEET TO THE POINT OF BEGINNING. ALSO: (13TH FAIRWAY) EXHIBIT A 2 of 5
BEGINNING AT THE NORTHWEST CORNER OF LOT 62 OF THE GOLF CLUB ESTATES AT CREEKSIDE, PHASE 2, P.U.D., AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS; THENCE RUNNING SOUTH 4 29'00" WEST 57.71 FEET TO THE SOUTHWEST CORNER OF SAID LOT 62 ON THE NORTHERLY RIGHT OF WAY LINE OF CREEKSIDE DRIVE; THENCE ALONG SAID RIGHT OF WAY LINE NORTH 85 31'00" WEST 122.10; THENCE 320.60 FEET ALONG A 1730.00 FOOT RADIUS CURVE TO THE LEFT, (THE CHORD OF WHICH BEARS SOUTH 89'10'28" WEST 320.15 FEET); THENCE SOUTH 83 51'55" WEST 415.12 FEET TO THE WESTERLY BOUNDARY OF PUD.; THENCE CONTINUING ALONG SAID RIGHT OF WAY LINE SOUTH 83 51'55" WEST 132.62 FEET; THENCE 86.23 FEET ALONG A 286.95 FOOT RADIUS CURVE TO THE RIGHT, (THE CHORD OF WHICH BEARS NORTH 87 31'32" WEST 85.91 FEET); THENCE LEAVING SAID RIGHT OF WAY LINE NORTH 08 13'11" WEST 70.40 FEET; THENCE NORTH 85 44'11" EAST 168.91 FEET; THENCE NORTH 26 33'53" EAST 50.95 FEET; THENCE NORTH 42 22'47" EAST 74.74 FEET; THENCE NORTH 55 05'07" EAST 54.85 FEET; THENCE NORTH 74 44'19" EAST 60.34 FEET; THENCE NORTH 43 31'12" EAST 84.51 FEET; THENCE NORTH 59 51'45" EAST 85.51 FEET; THENCE NORTH 67 35'01" EAST 92.75 FEET; THENCE NORTH 78 10'34" EAST 132.73 FEET; THENCE NORTH 75'40'13" EAST 129.25 FEET; THENCE NORTH 84 58'50" EAST 81.05 FEET; THENCE NORTH 79 05'06" EAST 58.44 FEET; THENCE NORTH 86 33'17" EAST 68.52 FEET; THENCE NORTH 86 30'54" EAST 181.99 FEET; THENCE SOUTH 80 38'56" EAST 48.97 FEET TO THE SOUTHWEST CORNER OF LOT 50 OF GOLF CLUB ESTATES AT CREEKSIDE PUD., AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS; THENCE RUNNING SOUTH 89 49'27" EAST 160.00 FEET TO THE SOUTHWEST CORNER OF LOT 48 OF SAID P.U.D.; THENCE SOUTH 85 26'27" EAST 240.13 FEET ALONG THE SOUTH LINES OF LOTS 48, 47 AND 46 TO THE SOUTHWEST CORNER OF LOT 45; THENCE SOUTH 84 12'00" EAST 406.89 FEET ALONG THE SOUTH LINES OF LOTS 45, 44, 43, 42, AND 41 TO THE SOUTHEAST CORNER OF LOT 41 ON THE WEST SIDE OF CROOKED STICK LOOP; THENCE SOUTH 12 06'00" WEST 320.70 FEET ALONG THE WEST SIDE OF CROOKED STICK LOOP TO THE NORTHEAST CORNER OF LOT 40 OF SAID P.U.D.; THENCE RUNNING NORTH 84 12'00" WEST 363.89 FEET ALONG THE NORTH LINE OF LOTS 40, 38, 37 AND 36 TO THE NORTHWEST CORNER OF LOT 36 OF SAID P.U.D.; THENCE NORTH 85 31'00" WEST 338.06 FEET ALONG THE NORTH SIDE OF LOTS 35, 34, 33 AND 32 TO THE NORTHWEST CORNER OF LOT 32, BEING ALSO THE NORTHEAST CORNER OF LOT 61 OF SAID PHASE 2 P.U.D.; THENCE NORTH 85 31'00" WEST 27.30 FEET ALONG THE NORTH LINE OF SAID LOT 61; THENCE SOUTH 77 41'12" WEST 159.51 FEET ALONG THE NORTH LINE OF LOTS 61 AND 62, THENCE SOUTH 87 14'37" WEST 22.54 FEET TO THE POINT OF BEGINNING. ALSO: (14TH FAIRWAY) BEGINNING AT THE SOUTHWEST CORNER OF LOT 15 OF THE GOLF CLUB ESTATES AT CREEKSIDE P.U.D.--PHASE I DEVELOPMENT AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS; THENCE SOUTH 77 54'00" EAST 100.00 FEET ALONG THE SOUTH SIDE OF SAID LOT 15 TO THE SOUTHEAST CORNER OF LOT 15; THENCE NORTH 12 06'00" EAST 73.00 FEET TO THE SOUTHEAST CORNER OF LOT 14; THENCE NORTH 59 49'07" EAST 33.68 FEET TO THE SOUTHWEST CORNER OF LOT 13; THENCE SOUTH 89 51'30" EAST 43.28 FEET ALONG SAID LOT 13 TO THE NORTHWEST CORNER OF LOT 12; THENCE SOUTH 09 52'20" EAST 319.98 FEET ALONG THE WEST SIDE OF LOTS 12, 11, 10 AND LOT 9 TO THE SOUTHWEST CORNER OF LOT 9; THENCE SOUTH 08 29'38" EAST 240.00 FEET ALONG LOTS 8, 7 AND LOT 6, TO THE SOUTHWEST CORNER OF LOT 6; THENCE SOUTH 00 32'51" WEST 74.96 FEET TO THE SOUTHWEST OF LOT 5; THENCE SOUTH 12 07'48" WEST 74.34 FEET TO THE SOUTHWEST CORNER OF LOT 4; THENCE SOUTH 71 56'38" EAST 100.00 FEET TO A POINT ON THE WEST SIDE OF THE CROOKED STICK LOOP THENCE SOUTHERLY 101.96 FEET ALONG THE WEST SIDE OF SAID CROOKED STICK LOOP, THAT IS A 460 FOOT RADIUS CURVE TO THE RIGHT, (THE CHORD OF WHICH BEARS SOUTH 24 24'21" WEST 101.75 FEET); THENCE CONTINUING ALONG SAID CROOKED STICK LOOP, SOUTH 30 45'20" WEST 177.05 FEET; THENCE 34.33 FEET ALONG A 20.00 FOOT RADIUS CURVE TO THE RIGHT (THE CHORD OF WHICH BEARS SOUTH 79 55'38" WEST 30.27 FEET); THENCE 30.02 FEET ALONG A 433.52 FOOT RADIUS CURVE TO THE RIGHT, (THE CHORD OF WHICH BEARS NORTH 48 55'02" WEST 30.01 FEET); THENCE NORTH 46 56'00" WEST 327.67 FEET TO THE SOUTHEAST CORNER OF LOT 22 OF SAID PLAT; THENCE NORTH 21 27'20" EAST 170.59 FEET ALONG LOT 22 AND A PORTION OF LOT 21; THENCE NORTH 12 06'00" EAST 472.05 FEET TO THE NORTHEAST CORNER OF LOT 16; THENCE NORTH 77 54'00" WEST 100.00 FEET TO THE NORTHWEST CORNER OF SAID LOT 16; THENCE NORTH 12 06'00" EAST 30.00 FEET TO THE POINT OF BEGINNING. EXHIBIT A 3 of 5
TOGETHER WITH AN EASEMENT FOR ACCESS OVER THAT CERTAIN ROADWAY SHOWN AS CREEKSIDE DRIVE ON SUBDIVISION PLAT GOLF CLUB ESTATE AND CREEKSIDE PUD. PHASE I AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS, VOLUME 40, PAGE 21; SUBDIVISION PLAT GOLF CLUB ESTATES AT CREEKSIDE PUD. PHASE 2 AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS, VOLUME 40, PAGE 94; SUBDIVISION PLAT FAIRWAY I AT CREEKSIDE P.U.D. AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS, VOLUME 40, PAGE 113, AS DISCLOSED IN ARTICLE 8, SECTION 4 OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF GOLF COURSE ESTATES AT CREEKSIDE, RECORDED AUGUST 26, 1992 IN REEL 982 PAGE 273 AS MODIFIED BY DECLARATION OF MODIFIED COVENANTS, CONDITIONS AND RESTRICTIONS OF GOLF COURSE ESTATES AT CREEKSIDE, RECORDED AT REEL 1144, PAGE 300, AND AS MODIFIED BY SECOND MODIFICATION OF DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF GOLF COURSE ESTATES AT CREEKSIDE, RECORDED AT REEL 1163, PAGE 784, MARION COUNTY RECORDS. ALSO TOGETHER WITH THOSE EASEMENTS SET FORTH IN THAT GOLF PLAY EASEMENT, INCLUDING THE TERMS AND PROVISIONS THEREOF, RECORDED MARCH 22, 1995 IN REEL 1227, PAGE 617, DEED RECORDS FOR MARION COUNTY, OREGON. SAVE AND EXCEPT: BEGINNING AT THE NORTHEAST CORNER OF LOT 1, OF FAIRWAY ONE AT CREEKSIDE P.U.D. DEVELOPMENT AS PLATTED AND RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS, VOLUME 40, PAGE 113; THENCE RUNNING SOUTHEASTERLY ALONG A 252.25 FOOT RADIUS CURVE TO THE RIGHT 11.67 FEET (THE CHORD OF WHICH BEARS SOUTH 80 14'32" EAST 11.67 FEET); THENCE CONTINUING SOUTHEASTERLY ALONG A 336.92 FOOT RADIUS CURVE TO THE LEFT 50.88 FEET (THE CHORD OF WHICH BEARS SOUTH 83 14'32" EAST 50.83 FEET); THENCE SOUTH 34 31'42" EAST 31.72 SET; THENCE SOUTH 34 22'40" WEST 40.51 FEET; THENCE SOUTH 57 49'40" WEST 43.48 FEET; THENCE SOUTH 78 00' 38" WEST 162.00 FEET, PARALLEL WITH THE SOUTH BOUNDARY OF THE SAID FAIRWAY ONE DEVELOPMENT; THENCE CONTINUING PARALLEL WITH THE SAID SOUTH BOUNDARY OF THE FAIRWAY ONE DEVELOPMENT, NORTH 74 48'07" WEST 416.64 FEET; THENCE NORTH 15 11'53" EAST 18.01 FEET TO THE SOUTHWEST CORNER OF LOT 10 OF FAIRWAY ONE AT CREEKSIDE PUD. DEVELOPMENT; THENCE FOLLOWING ALONG THE SOUTH BOUNDARY OF THE SAID FAIRWAY ONE PROJECT, SOUTH 74 48'07" EAST 418.85 FEET; THENCE NORTH 78 00'38" EAST 150.80 FEET TO THE SOUTHEAST CORNER OF SAID LOT 1 OF FAIRWAY ONE AT CREEKSIDE; THENCE NORTH 11 59'22" WEST 77.91 FEET TO THE POINT OF BEGINNING. SAVE AND EXCEPT THAT PORTION CONVEYED IN STATUTORY BARGAIN AND SALE DEED RECORDED APRIL 18, 2008 AS REEL 2943, PAGE 124, FILM RECORDS, WHICH IS PARTICULARLY DESCRIBED AS FOLLOWS: A PORTION OF A TRACT OF LAND DESCRIBED IN REEL 1906, PAGE 396, MARION COUNTY, OREGON DEED RECORDS, SAID TRACT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF LOT 511, GOLF CLUB ESTATES AT CREEKSIDE PHASE 12, P.U.D. (PHASE 12) AS RECORDED IN THE MARION COUNTY BOOK OF TOWN PLATS IN VOLUME H46, PAGE 70, MARION COUNTY, OREGON BOOK OF TOWN PLATS, THENCE SOUTH 17 10'43" WEST, ALONG THE EAST LINE OF SAID LOT, A DISTANCE OF 162.26 FEET; THENCE SOUTH 00 17'02" EAST, A DISTANCE OF 140.27 FEET; THENCE SOUTH 02 55'54" WEST, A DISTANCE OF 160.58 FEET; THENCE SOUTH 04 00'03" EAST, A DISTANCE OF 125.35 FEET; THENCE NORTH 26 04'44" EAST, LEAVING SAID LOT LINE, A DISTANCE OF 37.76 FEET, TO THE CENTERLINE OF BATTLE CREEK; THENCE NORTH 04 55'25" WEST, ALONG SAID CENTERLINE OF CREEK, A DISTANCE OF 12.60 FEET; THENCE NORTH 19 40'55" WEST, A DISTANCE OF 22.32 FEET; THENCE NORTH 23 12'23" EAST, A DISTANCE OF 33.07 FEET; THENCE NORTH 35 19'07" EAST, A DISTANCE OF 28.11 FEET; THENCE NORTH 45 24'51" EAST, A DISTANCE OF 23.65 FEET; THENCE NORTH 10 04'34" EAST, LEAVING SAID CENTERLINE OF CREEK, A DISTANCE OF 70.55 FEET; THENCE NORTH 02 10'23" WEST, A DISTANCE OF 48.50 FEET; THENCE NORTHEASTERLY, ALONG A CURVE TO THE RIGHT WITH A RADIUS OF 2307.50 FEET, (THE CHORD OF WHICH BEARS NORTH 00 00'41" EAST, 332.59 FEET), AN ARC DISTANCE OF 332.88 FEET, TO THE POINT OF BEGINNING. EXHIBIT A 4 of 5
ALSO TOGETHER WITH: BEGINNING AT A 5/8" IRON ROD, BEING THE NORTHEAST CORNER OF LOT 474, GOLF CLUB ESTATES AT CREEKSIDE PHASE 11 P.U.D., AS RECORDED IN VOLUME 45, PAGE 182, MARION COUNTY BOOK OF TOWN PLATS AND LOCATED IN THE NORTHWEST 1/4 OF SECTION 22, TOWNSHIP 8 SOUTH, RANGE 3 WEST, WILLAMETTE MERIDIAN, MARION COUNTY, OREGON; THENCE NORTH 80 58'12" EAST 524.48 FEET TO A 5/8" IRON ROD; THENCE SOUTH 00 21'48" WEST 76.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 77 04'10" EAST 130.04 FEET TO A 5/8" IRON ROD: THENCE 64.08 FEET ALONG A 975.00 FOOT RADIUS CURVE TO THE RIGHT (THE CHORD OF WHICH BEARS NORTH 78 57'08" EAST 64.07 FEET) TO A 5/8" IRON ROD; THENCE NORTH 12 08'44" WEST 201.18 FEET TO A 5/8" IRON ROD; THENCE SOUTH 77 50'44" WEST 45.59 FEET TO A 5/8" IRON ROD; THENCE SOUTH 77 03'26" WEST 335.96 FEET TO A 5/8" IRON ROD; THENCE SOUTH 65 15'55" WEST 238.89 FEET TO A 5/8" IRON ROD; THENCE SOUTH 51 50'48" WEST 96.43 TO THE POINT OF BEGINNING. NOTE: This Legal Description was created prior to January 01, 2008. EXHIBIT A 5 of 5
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