2022-067929 ~ 11974 SW 72nd Washington County,Oregon 2022-067929
11/17/2022 11:00:02 AM
D-IRUL Cnt=1 Stn=31 RECORDS'
$60.00$5.00$11.00$60.00-Total=$136.00
RETURN TO: 1111111 1111 111 111 1111111111 11
City of Tigard 02913801202200679290120121
Attn:Economic Development Program I.Joe Nelson,Director of Assessment and Taxation
13125 SW Hall Blvd. and Ex-Officio County Clerk for Washington County"
Oregon,do hereby certify that the within instrument of ;P
Tigard,OR 97223 writing was received and recorded In the book of 1 )
g records of said county
Joe Nelson,Director of Assessment and Taxation, 2ry C.
Ex-Officio County Clerk
SPACE ABOVE FOR RECORDER'S USE
CITY OF TIGARD
PROJECT USE AGREEMENT,DECLARATION OF RESTRICTIVE COVENANTS,
AND EQUITABLE SERVITUDE
VERTICAL HOUSING DEVELOPMENT PROGRAM
THIS PROJECT USE AGREEMENT, DECLARATION OF RESTRICTIVE COVENANTS
AND EQUITABLE SERVITUDE (the "Agreement") is made and entered into this I(o day of
I\\b • r , ZOZZ, by and between Dartmouth Project LLC (the "Recipient") and the City
of Tigard, (the"City").
PURPOSE
The City desires to make available to the Recipient a certification for a 10-year partial tax
exemption on a Certified Vertical Housing Development Project, to stimulate the development of the
housing project known as SW 72"d and Dartmouth Mixed Use (the "Project") located in Tigard,
Oregon at 11974 SW 72nd Ave. The legal property description of said Project is set forth in Exhibit A,
which also is attached hereto and incorporated herein by reference.
The Recipient is willing to receive the Certification, to satisfy the conditions thereof, and to
execute and record this Agreement for the purpose, in part, of creating restrictive covenants and an
equitable servitude that shall run with the Project land and bind any and all subsequent owners of the
Project for the term of this Agreement.
AGREEMENT
In consideration of the above purposes and of the representations, covenants, warranties and
agreements set forth herein, and for other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows in order to ensure that the Project will be
operated in accordance with this Agreement and that the following covenants,restrictions and charges
shall run with the land and be binding and a burden upon the Project, and all portions thereof, and upon
any purchaser, grantee, owner or lessee of any portion of the Project and any other person or entity
having any right, title or interest therein and upon the respective heirs, executors, administrators,
devisees, successors and assigns of any purchaser, grantee, owner or lessee of any portion of the
Project and any other person or entity having any right, title or interest therein, for the length of time
that this Agreement is in effect.
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 721'"Ave,Tigard OR 97223)
Page 1 of 9
SECTION 1. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE
RECIPIENT CONCERNING USE OF THE CERTIFICATION AND MAINTENANCE OF
PROJECT AS A CERTIFIED VERTICAL HOUSING DEVELOPMENT PROJECT. Recipient
hereby represents, covenants, warrants and agrees that:
a. Recipient will maintain the mixed residential and non-residential uses of the Certified Project for a
period of 10 years (the "Compliance Period") from the first year the county assessor partially
exempts the project from the specified ad valorem taxes. Mix of residential and non-residential
uses will remain as proposed in the Project Application as identified in Exhibit B.
b. Certified Use of the project is restricted to a total of four(4) eligible floors.
c. Recipient will comply, and will cause its agents, employees, contractors, subgrantees and assigns,
if any, to comply with the terms and conditions of this Agreement and all otherwise applicable
laws(including, without limitation, all applicable federal, state and local statutes, rules,regulations,
ordinances and orders affecting the Project or activities related thereto).
SECTION 2. COVENANTS TO RUN WITH THE LAND; EQUITABLE SERVITUDE.
The Recipient represents, covenants, warrants and agrees that:
a. The City is making the Certification to the Recipient as an inducement to the Recipient to
develop and operate the Project in accordance with the terms of this Agreement. In
consideration of the receipt of the Certification, the Recipient has entered into this Agreement
with the City and has agreed to restrict the use of the Project during the Compliance Period as
set forth in this Agreement.
b. The covenants, restrictions, and charges set forth herein with respect to the Project will be
deemed restrictive covenants running with the Project land and also will be deemed an
equitable servitude running with the Project land. These restrictive covenants and equitable
servitude will pass to and be binding upon the Recipient's successors in title including any
purchaser, grantee or lessee of any portion of the Project, will pass to and be binding upon the
respective heirs, executors, administrators, devisees, successors and assigns of the Recipient or
any purchaser, grantee or lessee of any portion of the Project and will pass to and be binding
upon any other person or entity having any right, title or interest in the Project. Each and every
contract, deed or other instrument hereafter executed covering or conveying the Project or any
portion thereof or interest therein must contain an express provision making such conveyance
subject to the covenants,restrictions, and charges contained herein; provided, however, that any
such contract, deed or instrument will conclusively be held to have been executed, delivered
and accepted subject to such covenants, restrictions and charges regardless of whether or not
such covenants, restrictions and charges are set forth or incorporated by reference in such
contract, deed or instrument.
SECTION 3. BURDEN AND BENEFIT. The parties hereby declare their understanding
and intent that the burdens of the covenants, restrictions, and charges set forth herein touch and
concern the Project land and that the Recipient's legal interest in the Project may be rendered less
valuable thereby. The parties further declare their understanding and intent that the benefits of such
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72"Ave,Tigard OR 97223)
Page 2 of 9
covenants, restrictions, and charges touch and concern the Project land by enhancing and increasing
the enjoyment and use of the owners and tenants of the equivalent floors, the intended beneficiaries of
such covenants, restrictions, and charges and by furthering the public purposes for which the partial
exemption is certified.
SECTION 4. COMPLIANCE REPORTING. The Parties hereby agree that Recipient will
provide an annual certification, in a format and on a schedule approved by the City in its sole
discretion, that the Recipient is fulfilling its obligations under this Agreement. The City may inspect
the Project, and any part thereof, and may inspect and copy all records of the Project, upon reasonable
notice to the Recipient. The Recipient, its agents, employees, and subcontractors will cooperate fully
with the City in any requested inspection or compliance monitoring.
SECTION 5. SUBORDINATION. The parties agree that this Agreement and the restrictive
covenants and equitable servitude created hereunder is subordinated to the lien of Recipient's primary
financing loan. The City, at its sole discretion, may subordinate this Agreement to other financing on
the Project.
SECTION 6. TERM OF AGREEMENT. Recipient will maintain the mixed residential and
non-residential uses of the Certified Project for the duration of the Compliance Period, as defined in
Section l.a. to this Agreement. Notwithstanding any other provision of this Agreement, this
Agreement will terminate and be of no further force and effect in the event of a completed foreclosure
by the primary financing lender or by a lender to whom the City has subordinated this Agreement, or
their successors or assigns, or in the event of a delivery by the Recipient of a deed for the Project to the
primary financing lender in lieu of foreclosure, or to a lender to whom the City has subordinated this
Agreement, or their successors or assigns.
SECTION 7. TERMINATION. The City may terminate this Agreement, without further
liability, immediately upon notice to the Recipient:
a. If the Recipient fails to perform or breaches any of the terms of this Agreement; or
b. If the Recipient is unable or fails to commence the Project within six (6) months from the date
of this Agreement;
c. If the City loses the authority to administer the Program, is determined by its counsel or
otherwise as lacking the authority to administer the Program, or fails to receive or loses
necessary funding, appropriations, limitations or other expenditure or position authority
sufficient to carry out the terms of this Agreement; or
SECTION 8. REMEDIES. If the Recipient defaults in the performance or observance of any
covenant, agreement, or obligation set forth in this Agreement and if such default remains uncured for
a period of 30 days (or such shorter period as the City may indicate in its notice) after the notice
thereof has been given by the City to the Recipient, then the City, at its option, may take any one or
more of the following steps:
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72"Ave,Tigard OR 97223)
Page 3 of 9
a. Have access to and inspect, examine and make copies of all of the books and records of the
Recipient pertaining to the Project;
b. May decertify the project or a portion thereof;
c. Take such other action under this Agreement, at law or in equity as may appear necessary or
desirable to the City to enforce the covenants, agreements, warranties, and obligations of the
Recipient hereunder.
No waiver or delay in enforcing the provisions hereof as to any breach or violation may impair,
damage or waive the right of any person entitled to enforce the same to obtain relief against or recover
for the continuation or repetition of such breach or violation or any similar breach or violation thereof
at any later time or times.
SECTION 9. RECORDING AND FILING. The Recipient shall cause this Agreement and
all amendments and supplements hereto to be recorded and filed in the real property records of
Washington County. The Recipient will pay all fees and charges incurred in connection with any
recording. The Recipient shall provide either the original recorded document or a certified copy of the
recorded document within ten days of the date of this Agreement.
SECTION 10. GOVERNING LAW; VENUE. This Agreement is governed by the laws of
the State of Oregon. The State of Oregon Circuit Court of Washington County, or to the degree
necessary, the U.S. District Court for the District of Oregon have exclusive jurisdiction over any action
brought by or against the City under this Agreement. The Recipient hereby consents to such exclusive
jurisdiction and waives any and all objections it might have thereto.
SECTION 11. AUTHORITY. Recipient hereby represents, warrants and certifies that:
a. It possesses legal authority to apply for and accept the terms and conditions of the Certification
and to carry out the proposed Project;
b. Its governing body, if any, has duly authorized the filing of the application, including all
understandings and assurances contained therein;
c. The person identified as the official representative of the Recipient in the application is duly
authorized to act in connection therewith and to provide such additional information as may be
required. The Recipient's official representative has sufficient authority to make all
certifications on its behalf;
d. This Agreement does not and will not violate any provision of any applicable law, rule,
regulation or order of any court, regulatory commission, board or administrative agency
applicable to the Recipient or any provision of the Recipient's organic laws or documents;
e. This Agreement has been duly executed by an official representative of Recipient, delivered by
Recipient, and will constitute the legal, valid and binding obligations of the Recipient,
enforceable in accordance with their terms.
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72"Ave,Tigard OR 97223)
Page 4 of 9
SECTION 12. INDEPENDENT CONTRACTOR. Recipient acknowledges and agrees that
it is acting in its own independent capacity under this Agreement and not as an agent or subcontractor
for the City. Grantee assumes full responsibility for its own actions and will provide for its own
insurance and other compliance responsibilities, including providing for its own workers'
compensation and other insurance coverage, as needed.
SECTION 13. AMENDMENTS. This Agreement may be amended only by a written
instrument executed by the parties hereto or by their successors and duly recorded in the real property
records of Washington County.
SECTION 14. SEVERABILITY. If any provision of this Agreement is determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions
hereof will not in any way be affected or impaired thereby.
SECTION 15. CONSTRUCTION. The parties to this Agreement acknowledge that each
party and its counsel have participated in the drafting and revision of this Agreement. Accordingly, the
parties agree that any rule of construction to the effect that ambiguities are to be resolved against the
drafting party will not apply in the interpretation of this Agreement or any amendment, modification,
supplement or restatement of the foregoing or of any exhibit to this Agreement.
SECTION 16. NO LIMITATIONS ON ACTIONS OF ISSUER IN EXERCISE OF ITS
GOVERNMENTAL POWERS. Nothing in this Agreement is intended, nor may it be construed, to
in any way limit the actions of the City in the exercise of its governmental powers. It is the express
intention of the parties hereto that the City retains the full right and ability to exercise its governmental
powers with respect to the Recipient, the Project, the land, and the transactions contemplated by this
Agreement to the same extent as if it were not a party to this Agreement or the transactions
contemplated thereby, and in no event may the City have any liability in contract arising under this
Agreement by virtue of any exercise of its governmental powers.
SECTION 17. TIME IS OF THE ESSENCE. Time is of the essence in the performance of
the obligations of this Agreement.
SECTION 18. NOTICES. Any notice required to be given hereunder will be made in writing
and shall be given by personal delivery or first class mail, postage prepaid, at the addresses specified
below, or at such other addresses as may be specified in writing by the City or the Recipient:
To the City: City of Tigard
Attn: Economic Development Program
13125 SW Hall Blvd.
Tigard, OR 97223
To the Recipient: Dartmouth Project LLC
c/o ScanlanKemperBard Companies, LLC
222 SW Columbia Street, Suite 700
Portland OR 97201
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72°"Ave,Tigard OR 97223)
Page 5 of 9
[Signature Page to Follow]
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72nd Ave,Tigard OR 97223)
Page 6 of 9
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives as of the day and year first above written.
RECIPIENT: CITY:
DARTMOUTH PROJECT LLC CITY OF TIGARD
By: oh. By: Il. //
,__________
Title: rel. ' 1_ , ' ,L. Title: C ! t, c)�
pp
CITY OF E-r B.Qco..,,.c.\\ )
ss:
County ofV\dp-k‘t\,,,,,,,,,,. )
The foregoing instrument was acknowledged before me this \\,-lilay of A_e ,,,,63-.r ,
osna a' ,by O\' 0',2 ,who
is a 1\ nt%-I FA $ ,nc.C- of
c��,,,N,0.. r �`� a P \___L-c-- , on behalf of
the Recipient. v
'‘',-).1:-'.4.1t-: OFFICIAL STAMP �JI
/ * SHARON LOOFBURROW t �e'
� NOTARY PUBLIC-OREGON �} Notary Public for e 'l ate of Oregon
COMMISSION NO.1019346 (1 My commission expires: \-
MY COMMISSION EXPIRES NOVEMBER 29,202 a
CITY OF TIGARD )
,; ) ss:
County of � )
The foregoing instrument was acknowledged before me this
if 34,,,
day of \\10,44W ,
202;2- ,by KQ..0(�1 Pr -+(- ,who
is a C(XXVO,Okti >. .cy -'c-h c)tq rtof the City of Tigard.
0`
/ '�, OFFICIAL STAMP
ERNESTINA ESCALERA �� i) Y
r ' r NOTARY PUBLIC-OREGON
Notary Public for the State of O egon
COMMISSION NO 998434alitiaMycommission expires: i
MI IVIG N EXPRR1,Mar 11, 14 p
21.
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72"Ave,Tigard OR 97223)
Page 7 of 9
1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT
Real Property situated in the southwest one-quarter of the southeast one-quarter of Section 36,Township 1
South, Range 1 West,Willamette Meridian,Washington County, Oregon,described in Recorder's Fee No.
2006-069460, Recorder's Fee No. 2006-069491, Recorder's Fee No. 2006-107304 and Recorder's Fee No. 2014-
019449,Washington County Deed Records more particularly described as follows:
Beginning at the Northeast corner of Lot 3 per the Plat of Isaacs Subdivision, Book 18, page 27,Washington
County Plat Records, also being a point on the southerly right-of-way of SW Clinton Street;
Thence South 01°26'29"West along the East line of said Lot 3 a distance of 190.73 feet to the Southeast corner
thereof.
Thence North 88°42'21"West along the South line of said Lot 3 a distance of 37.09 feet to the Northeast
Corner of said property described in Recorder's Fee No. 2006-069460;
Thence South 01°42'46"West along the East line of said Recorder's Fee No. 2006-069460 and Recorder's Fee
No. 2006-069461 a distance of 203.54 feet,to the Northerly right-of-way of SW Dartmouth Street as
dedicated in Recorder's Fee No. 2013-104428;
Thence North 88°33'22"West along said northerly right-of-way line a distance of 151.03 feet,to a point of
curvature of a 26.00 foot radius curve to the right;
Thence along said curve to the right, through a central angle of 90°16'49", an arc distance of 40.97 feet(having
a chord bearing of North 43°24'57"West a distance of 36.86 feet), to a point on the easterly right-of-way line
of SW 72"d Avenue, as dedicated in said Recorder's Fee No. 2013-104428
Thence North 01°43'27" East along said easterly right-of-way line, being dedicated in Recorder's Fee No.
Recorder's Fee No. 2013-104428, Recorder's Fee No. 2013-104429, Recorder's Fee No. 2013-104427 and
Recorder's Fee No.2013-104430 a distance of 367.47 feet,to a point on said southerly right-of-way line of SW
Clinton Street, also being a point on the North line of Lot 1, said Plat of Isaacs Subdivision;
Thence South 88°45'41" East along said southerly right-of-way line a distance of 213.27 feet to the Point of
Beginning.
Containing 1.76 acres, more or less.
Bearings are based on record of SN 33605,Washington County Survey Records
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72"1 Ave,Tigard OR 97223)
Page 8 of 9
EXHIBIT B
MIX OF RESIDENTIAL &NON-RESIDENTIAL SQUARE FOOTAGES
[VHD Project Square Footage Certification Page,
Project Summary of Buildings Page, and
Project—Buildings by Floor by Use Square Footage Page to Follow]
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT
Dartmouth Project LLC(The Overland at 11974 SW 72nd Ave,Tigard OR 97223)
Page 9 of 9
VHD Project Square Footage Certification
Project Name: The Overland
Land Area(sf): 72,652
Total Units: 219
No.Market Units: 219
No.Affordable Units: -
Avg.No.of Floors: 6.00
Total Project S.F.: 206,705 Market Residential S.F 156,628
Less:Non-Residential: (7,134) Affordable Residential S.F. -
Total Residential S.F.: 199,571 Common Area S.F. 42,943
Total Residential S.F. 199,571
Residential S.F.(no common) 156,628
Total Project S.F. 206,705
Equalized Floor = _ = 34,451
No.of Floors>_500 s.f. 6
Residential Allocation of Equalized Floors = Total Residential S.F. = 199,571 = 5.79 = 5
S.F.of an Equalized Floor 34,451
Maximum Allowable Equalized Floors for Project = 4
Low-Income S.F. 0
Percent Low-Income Common Area = Residential S.F. 156,628 0.0%
Low-Income Allocation of Equalized Floors = Total Low-Income S.F. = 0 = 0.00 = 0
S.F.of an Equalized Floor 34,451
Maximum Allowable Equalized Low-Income Floors for Project = 0
Low-Income Land Allocation = Total Low-Income S.F. = 0 = 0.00 = 0
S.F.of an Equalized Floor 34,451
Maximum Allowable Low-Income Equalized Floors for Land = 0
Project Certification
Building Eligible for Certification: Yes
Percent Improvement Exemption: 80% Based on 4 equalized floors
Percent Low-Income Land Exemption: 0% Based on 0 low-income equalized floors
Date of Certification/Analysis: October 19,2022
-J
Analyst's Signature: _/ '
eab
Title: ✓(� O (-
Project Summary of Buildings for Certification
Building
Building Number: 1 2 3 4 5 6 Total
Land Area 72,652 0 72,652
Total Number of Buildings 1 1 2
No.of Floors: 6 6 12
Average No.Floors per Building 6.00
Total Building S.F.: 113,425 93,280 206,705
Less:Non-Residential S.F.: 6,290 844 7,134
Total Residential S.F. 107,135 92,436 0 0 0 0 199,571
Market Residential S.F. 82,274 74,354 156.628
Affordable Residential S.F. 0 0 0
Common Area S.F. 24,861 18,082 42.943
Total Residential S.F. 107,135 92,436 0 0 0 0 199,571
Residential less Common Area S.F.: 82,274 74,354 156,628
No.Market Units: 120 99 219
No:Affordable Units: 0 0 0
Total Units 120 99 0 0 0 0 219
New Construction
Total Project Cost 47,321,731 0 47,321,731
Substantial Rehabilitation
Before:Total RMV 0 0 0
Cost of Rehab. 0 0 0
After:Total Cost 0
Percent Rehab of Before RMV #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Project - Buildings by Floor by Use & S.F. or Units
Non Residential Resid. Bldg.
Land Resid. Market Units Low Income Units Common S.F.
Bldg. Area Floor S.F. S.F. Units S.F. Units S.F. Subtotals
1 Ground 6.290 - - - - 7,583 13,873
SOUTH Podium - 10,297 13 - - 4,446 14,743
2 - 18,386 27 - - 2,993 21,379
72,652 3 - 18,386 27 - - 2,993 21,379
4 - 18,386 27 - - 2,993 21,379
5 - 16,819 26 - - 3,853 20,672
6 6,290 82,274 120 - - 24,861 113,425
2 Ground 844 - - - - 3,897 4,741
Podium
NORTH (Mezz) - - - - - 1,312 1,312
2 - 14,366 19 - - 3.057 17,423
3 - 14,997 20 - - 2,454 17,451
4 - 14,997 20 - - 2.454 17,451
5 - 14,997 20 - - 2.454 17,451
6 - 14,997 20 - - 2.454 17,451
6 844 74,354 99 - - 18,082 93,280
Total 72,652 12 7,134 156,628 219 - 0 42,943 206,705
check= 206,705