REACH Community Development, Inc ~ AG223002 EXHIBIT A
DEVELOPMENT ASSISTANCE AGREEMENT
THIS DEVELOPMENT ASSISTANCE AGREEMENT ("Agreement")is made this
day of—�2022 by and between the Town Center Development Agency, an ORS
Chapter 457 urban renewal agency ("TCDA' and REACH Community Development,Inc.,an Oregon
nonprofit public benefit corporation ("REACH").TCDA and REACH may be referred to in this
Agreement jointly as the "Parties"and individually as a"Party."
RECITALS
A. REACH shall form a limited partnership of which REACH,or an entity wholly controlled by
REACH,is the general partner(the"Partnership).The Partnership intends to develop property
located at the intersection of SW Clinton Street and SW 69`'Avenue in the Tigard Triangle area
("Property' with an 85-unit apartment building affordable to those making 60% or below the Area
Median Income ("Project").
B. TCDA has determined that the Project furthers many of its goals for the Tigard Triangle area
because it provides affordable housing and provides a public plaza, furthering placemaking and
helping to activate a priority area of the Tigard Triangle area.
C. TCDA has identified funds it will make available to developments like the Project and REACH
qualifies for the receipt of such funds.
D. The Parties desire to enter into the Agreement for TCDA to provide development assistance to
REACH for the development of the Project and,specifically,to assist REACH with the payment of
the City of Tigard's system development charges applicable to the Project.
E. The completion of the Project according to the terms of this Agreement is a material inducement to
TCDA to enter into this Agreement.
NOW,THEREFORE,in consideration of the public benefits to be created by the development of the
Project and for other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
Certificate of Occupancy means the Certificate of Occupancy issued for the Project by the City of
Tigard Community Development Department.
City means the City of Tigard,a municipal corporation of the State of Oregon.
OHCS means the State of Oregon acting by and through its Housing and Community Services
Department.
URA means the Tigard Triangle Urban Renewal Area.
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2. REACH PROJECT DEVELOPMENT
2.1 Subject to events and circumstances outside of REACH's reasonable control,REACH will use
commercially reasonable efforts to begin and to complete development of the no later than
June 30, 2025.
2.2 This Agreement is not intended to be a contract providing for construction of the Project by
TCDA either directly or through a contractor and REACH is not developing the Project for or
on behalf of TCDA or the City.REACH is solely responsible for selecting a construction
contractor for the Project.The rights and responsibilities of REACH,the general construction
contractor and any subcontractors, shall be provided for in separate contracts to which TCDA
is not a party.
3. TCDA FINANCIAL ASSISTANCE
3.1 TCDA shall pay to REACH up to $1,000,000.00,to cover the actual cost of the system
development charges ("SDCs") applicable to the Project. For administrative convenience,
TCDA shall make the payment directly to the City. Payment will be made when the SDCs are
due and payable,as provided in Tigard Municipal Code 3.24. Notwithstanding the foregoing,
the payment made to the City shall be considered financial assistance to REACH for the benefit
of the Project. REACH shall use such financial assistance to make a subsequent loan or capital
contribution to the Partnership for the payment of the SDC fees.
3.2 In the event the City's SDCs applicable to the Project are less than$1,000,000,TCDA shall pay
to the City only the amount of the SDCs applicable to the Project and TCDA shall have no
further financial obligations under this Agreement.
3.3 As a condition to payment,REACH shall provide TCDA with evidence that the apartment
units in the Project will be subject to one or more regulatory agreements which will make the
Project(at Certificate of Occupancy) affordable to those making 60% or below the Area
Median Income, as adjusted for household size, as determined by OHCS.
3.4 Subject to Section 2.1 above,this Agreement expires on December 31,2025, after which time
TCDA has no financial obligation to REACH unless the Parties extend the term of this
Agreement in writing.
4. REPRESENTATIONS,WARRANTIES,AND COVENANTS OF REACH
To induce TCDA to enter into this Agreement,REACH represents,warrants,and covenants as follows:
4.1 Existence. REACH is a nonprofit public benefit corporation, duly organized and validly
existing under the laws of the State of Oregon. REACH shall keep in force (or cause the
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Partnership to keep in force) all licenses and permits necessary to the proper conduct of its
ownership and operation of the Project.
4.2 Compliance with Laws. REACH will comply with,or cause the Project to comply with,all
laws,ordinances, statutes,rules,regulations, orders,injunctions,or decrees of any government
agency or instrumentality applicable to REACH,the Project,or the operation thereof,including
(a) all applicable health and safety,environmental,and zoning laws, (b) all federal and state tax
laws,and (c) all restrictions on the use,occupancy or operation of the Project.
4.3 Authority. REACH has full power and authority to conduct all of the activities that are now
conducted by it or proposed to be conducted by it in connection with the Project and as
contemplated by this Agreement,and to execute,deliver,and perform all obligations under this
Agreement;and the person executing this Agreement on behalf of REACH has the legal power,
right and actual authority to bind REACH to the terms and conditions of this Agreement.
4.4 Title. REACH owns and holds (or will own and hold) good and marketable fee simple title to
the Property. Upon conveyance of the Property to the Partnership,REACH will cause the
Partnership to hold good and marketable fee simple title to the Property.
4.5 Development Issues. REACH is aware of no identifiable issue(s) that would preclude
development of the Project or REACH's ability to cause the Partnership to obtain sufficient
financing for the construction or permanent ownership of the Project.
4.6 Binding Agreement.This Agreement and all documents required to be executed by REACH
are and shall be valid,legally binding obligations of and enforceable against REACH in
accordance with their terms.
4.7 No Conflict with Other Agreements. Neither the execution and delivery of this Agreement
and documents referred to herein,nor the incurring of the obligations set forth herein,nor the
consummation of the transactions herein contemplated,nor compliance with the terms of this
Agreement and the documents referred to herein conflict with or result in the material breach
of any terms, conditions,or provisions of,or constitute a default under any bond,note or other
evidence of indebtedness, or any contract,indenture,mortgage, deed of trust,loan,partnership
agreement,lease,or other agreements or instruments to which REACH is a party.
4.8 Indemnity. REACH shall indemnify and hold TCDA,its directors,officers,employees and
agents harmless from and against any and all liabilities, claims,losses, damages,or expenses
(including attorney fees and title costs and expenses)which any of them may suffer or incur in
connection with (a) the inaccuracy of any of the representations and warranties made herein,
(b) any transaction contemplated by this,and (c) the construction or operation of the Project,
except to the extent such liabilities,claims,losses, damages, or expenses arise solely from the
gross negligence or willful misconduct of TCDA.
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4.9 Additional Acts.From time to time, REACH will execute and deliver all such instruments,
provide such additional information,and perform all such other acts as TCDA may reasonably
request to carry out the transactions contemplated by this Agreement.
4.10 Environmental Indemnity.REACH will hold TCDA and its directors, officers,employees,
agents, successors, and assigns harmless from,will indemnify them for,and will defend them
against any and all losses,damages,liens, costs, expenses,and liabilities directly or indirectly
arising out of or attributable to any violation of any Environmental Law or the use,generation,
manufacture,production, storage,release,threatened release, discharge,disposal, or presence of
a Hazardous Substance on,under,or about the land,including without limitation the costs of
any required repair, cleanup,containment,or detoxification of the land,the preparation and
implementation of any closure,remedial, or other required plans, attorney fees and costs
(including but not limited to those incurred in any proceeding and in any review or appeal),
fees,penalties,and fines.
4.10.1 For purposes of this section,"Environmental Law"means any federal, state,or local law,
statute,ordinance,or regulation pertaining to Hazardous Substances (as defined below),health,
industrial hygiene, or environmental conditions,including without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),as amended(42
USC §§ 9601-9675), and the Resource Conservation and Recovery Act of 1976 (RCRA),as
amended (42 USC §§ 6901-6992k).
4.10.2 For purposes of this section,"Hazardous Substance"includes without limitation any material,
substance,or waste that is or becomes regulated or that is or becomes classified as hazardous,
dangerous,or toxic under any federal, state,or local statute,ordinance,rule, regulation,or law.
5. EVENTS OF DEFAULT
The occurrence of any one or more of the following shall be an event of default("Event of
Default") under this Agreement:
5.1 Failure to Disclose Material Facts. REACH deliberately fails to disclose any fact material to
TCDA's provision of financial assistance, or upon discovery by TCDA of any
misrepresentation by, or on behalf of,or for the benefit REACH.
5.2 Non-Compliance with Governmental Regulations. REACH fails to show evidence of full
or substantial compliance with any lawful,material requirement of any governmental authority
having jurisdiction over the Project or the Property within thirty days after notice in writing of
such requirement is given to REACH by TCDA or,if such compliance cannot be completed
within such thirty (30)-day period through the exercise of reasonable diligence,the failure by
REACH to commence the required compliance within such thirty (30)-day period and
thereafter to continue such compliance with diligence to completion.
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5.3 Other Material Breach. REACH otherwise materially breaches any term,covenant,condition,
provision,representation,or warranty of under this Agreement and fails to cure such breach
within thirty(30) days after notice in writing of such breach is given to REACH by TCDA or,if
such breach cannot be cured within such thirty(30)-dap period through the exercise of
reasonable diligence,the failure by REACH to commence the required cure within such thirty
(30)-day period and thereafter to continue such cure with diligence to completion.
G. DISPUTE RESOLUTION AND REMEDIES
If a dispute arises under this Agreement,including an Event of Default,the Party claiming the
existence of a dispute or Event of Default shall provide written notification of the dispute or Event
of Default to the other Party.A meeting will be held promptly between the Parties,attended by
representatives of the Parties with decision making authority regarding the dispute or Event of
Default to attempt in good faith to negotiate a resolution of the dispute or Event of Default.If the
Parties are not successful in resolving a dispute or Event of Default within twenty-one(21) days, the
Parties may pursue relief in a court of competent jurisdiction. Venue will be in the Washington
County Circuit Court.
7. ASSIGNMENT AND TRANSFER PROVISIONS
7.1 Restrictions on Assignments.Except as provided in this Section 7,REACH shall not
partially or wholly transfer REACH's interest in this Agreement without the prior written
approval of the TCDA,which may be withheld in TCDA's reasonable discretion.
7.2 Approved Transfers. Notwithstanding Section 7.1 above,and provided that REACH provides
TCDA with copies of all agreements related to the transfer,TCDA hereby consents to:
7.2.1 An assignment of REACH's rights under this Agreement to any entity in which REACH or
an affiliate thereof owns a direct or indirect interest.
7.2.2 The collateral assignment of rights under this Agreement to any mortgagee. For purposes of
this Section 7.2.2, "Mortgagee"means the holder of any mortgage, deed of trust,or
instrument securing debt or equity obtained to finance the construction of the Project,
together with any successor or assignee of such holder. TCDA will cooperate with REACH
and enter into commercially reasonable amendments to this Agreement if and as required by
any lender, equity provider or financier providing equity or debt to the Project.
8. MISCELLANEOUS
8.1 Counterparts. This Agreement may be executed in any number of counterparts,and any
single counterpart or set of counterparts signed,in either case,by all the parties hereto shall
constitute a full and original instrument,but all of which shall together constitute one and the
same instrument.
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8.2 Notice. Any notice required or permitted under this Agreement shall be in writing and shall be
deemed effective; (1)when actually delivered in person, (2) one business day after deposit with
a commercial courier service for"next day" delivery, (3) two business days after having been
deposited in the United States mail as certified or registered mail, or (4)when transmitted by
facsimile answer back or receipt confirmed),addressed to the parties as follows:
If to REACH:
REACH Community Development,Inc.
4150 S. Moody Ave.
Portland,OR 97239
Attn:Alma Flores
If to TCDA:
Town Center Development Agency of the City of Tigard
13125 SW Hall Blvd
Tigard, Oregon 97223
with a copy to:
City Attorney
City of Tigard
13125 SW Hall Blvd
Tigard, Oregon 97223
8.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit
of the Parties and their respective permitted successors and assigns.
8.4 Governing Law. This Agreement shall be governed by and construed under Oregon law.
8.5 Modification; Prior Agreements;Headings. This Agreement may not be modified or
amended except by an instrument in writing signed by the Parties. This Agreement reflects and
sets forth the entire agreement and understanding of the Parties with respect to the subject
matter hereof,and supersedes all prior agreements and understandings relating to such subject
matter.The headings in this Agreement are for the purpose of reference only and shall not limit
or otherwise affect any of the terms hereof.
8.6 Validity; Severability. If any provision of this Agreement is held to be invalid, such event shall
not affect,in any respect whatsoever,the validity of the remainder of this Agreement,and the
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remainder shall be construed without the invalid provision so as to carry out the intent of the
parties to the extent possible without the invalid provision.
8.7 Time of Essence.Time is of the essence of this Agreement.
8.8 Waivers. No waiver made by either Party with respect to the performance, or manner or time
thereof,of any obligation of the other Party or any condition inuring to its benefit under this
Agreement shall be of any force or effect unless in writing, shall be construed to be a
continuing waiver,and shall be considered a waiver of any other rights of the Party making the
waiver
8.9 No Partnership. Nothing contained in this Agreement or any acts of the Parties hereby shall
be deemed or construed by the Parties, or by any third person,to create the relationship of
principal and agent,or of partnership,or of joint venture,or any association between any of the
Parties other than that of independent contracting parties.
8.10 Non-Waiver of Government Rights. Subject to the terms and conditions of this Agreement,
by making this Agreement,TCDA is specifically not obligating itself,the City,or any other
agency with respect to any discretionary action relating to development or construction of the
Project,including,but not limited to,permits or any other governmental approvals which are or
may be required,except as expressly set forth herein
8.11 No Third-Party Beneficiary Rights.No person other than a Party is an intended beneficiary
of this Agreement,and no person other than a Party shall have any right to enforce any term of
this Agreement.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first above written.
Executed in multiple counterparts as of the day and year above written.
TOWN CENTER DEVELOPMENT AGENCY,
an ORS 457 Urban Renewal Agency,
By: Steve Rymer,Executive Director of the Town Center Development Agency of the City of
Tigard
Signed: ------
APPROVED AS TO FORM:
By:
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Shelby Rihala, City Attorney
REACH Community Development,Inc.
By:
Signed:
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