Northwest Housing Alternatives ~ AG243002 ~ Exclusive Negotiating Agreement AG243002
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement(the"Agreement") dated and effective as of
October i 5 , 2019, is by and between the CITY OF TIGARD, a municipal corporation of
the State of Oregon(the "City") and Northwest Housing Alternatives, an Oregon nonprofit
public benefit corporation("NHA").
RECITALS
WHEREAS, City owns the property at 8815 SW O'Mara St, Tigard, Oregon, as
further described on Exhibit A to this Agreement(the "Property"); and
WHEREAS, City desires to enter into a Disposition and Development Agreement
(or similar agreement or agreements) setting forth the terms upon which the City shall
transfer rights to the Property to a selected developer(collectively the "Negotiated
Agreement") in order to facilitate the development of affordable senior housing in the City
of Tigard(the "Housing"); and
WHEREAS, City has selected NHA as the developer of the Property pursuant to
the City of Tigard Senior Center Affordable Senior Housing Request for Information issued
June 10, 2019 (the "RFI"); and
WHEREAS,the purpose of this Agreement is to create a framework for upcoming
contract negotiations, which are anticipated to begin on the effective date of this Agreement
and end on Dec 31, 2020 (the "Negotiation Period").
AGREEMENT
The parties agree as follows:
A. Negotiations. The City and NHA agree for the Negotiation Period to negotiate
diligently and in good faith, the Negotiated Agreement, under which the City will transfer
the Property or an interest in or certain rights to the Property to NHA or an affiliate of NHA
by deed, ground lease, or other mechanism and under which NHA or an affiliate of NHA
will develop, own, maintain, and operate the Housing.
B. Exclusive Negotiation; Duration of Agreement
1. Exclusive. The City agrees that during the Negotiation Period,the City shall
not negotiate with any other person or entity regarding the sale, lease, disposition, or
development of the Property other than as necessary or appropriate in connection with the
current use of the Property or any similar or related use of the Property. Nothing in this
Agreement shall prevent or constrain the City from continuing the City's current use of the
Property and any similar or related use of the Property during the Negotiation Period.
2. Termination of Agreement. This Agreement automatically terminates upon
expiration of the Negotiation Period or execution of the Negotiated Agreement, whichever
DCAPDX\3174813.v5 1
comes first.
C. Limitations. By its execution of this Agreement,the City is not committing itself
to or agreeing to undertake the transfer of the Property or any interest or rights therein to
NHA or any affiliate of NHA. This Agreement does not constitute a transfer or other
disposition of the Property or any interest or rights therein. Execution of this Agreement by
the City is only an agreement to enter into a period of exclusive negotiation according to
the terms of this Agreement, reserving final and complete discretion to the City Council as
to the final approval of whether to enter into a Negotiated Agreement with NHA, and, if so,
the terms and conditions thereof, all in the City's sole discretion. The City is not waiving
or modifying any rights reserved by the City in the RFI and is not waiving any limitations
on municipal liability under Oregon law. If the Negotiated Agreement is never executed,
neither NHA nor its affiliates shall have any claim against the City, notwithstanding any
costs and expenses NHA or its affiliates may incur or have incurred prior to, during, or after
the Negotiation Period, in connection with their due diligence,the negotiation, or
otherwise.
D. Notices. All notices under this Agreement shall be delivered to the following
addresses, which may be changed upon written notice:
City:
City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
Attn: Sean Farrelly
NHA:
Northwest Housing Alternatives, Inc.
2316 SE Willard Street
Milwaukie, OR 97222
Attn: Destin Ferdun
E. General Provisions. This Agreement is not assignable by either party. This
Agreement is governed by the laws of State of Oregon. The exclusive venue for disputes is
Washington County, Oregon or the United States District Court for the District of Oregon
in Portland. This Agreement constitutes the entire understanding and agreement of the
parties and supersedes any prior negotiations, discussions, or previous agreements between
City and NHA concerning the subject matter of this Agreement.No modification to this
Agreement shall be made except by a written agreement executed by the City and NHA.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original agreement and both of which shall constitute one and the same
agreement. The counterparts of this Agreement may be executed and delivered by facsimile
or other electronic signature (including portable document format)by either of the parties
and the receiving party may rely on the receipt of such document so executed and delivered
electronically or by facsimile as if the original had been received.
DCAPDX\3174813.v5 2
(Signatures on next page)
IN WITNESS WHEREOF,the undersigned have executed this Agreement,to be
effective as of the date entered first above, regardless of the date of signatures.
CITY:
CITY OF TIGARD,
An Oregon municipal corporation
By: _M
Name: Martha L.Wine
Title: City Manager
NHA:
Northwest Housing Alternatives, Inc.,
an Oregon nonprofit public benefit corporation
By: ,� Al 1./ AAA /:.411i144
Trell Anderson xecutive Director
DCAPDX\3174813.v5 3
EXHIBIT G
FORM OF CERTIFICATE OF COMPLETION
After recording return to:
Northwest Housing Alternatives
2316 SE Willard
Milwaukie, OR 97222
CERTIFICATE OF COMPLETION
The CITY OF TIGARD, a municipal corporation of the State of Oregon ("City"), hereby
determines that NORTHWEST HOUSING ALTERNATIVES, INC., an Oregon limited liability
company ("Developer"), has substantially completed construction of the Project as described in
the DISPOSITION AND DEVELOPMENT AGREEMENT dated Pi,Ge w1bCr 13 , 20.3O(the
"Agreement"). Capitalized terms used herein without definition shall have the meaning ascribed
to them in the Agreement.
Pursuant to Section 5.8.1 of the Agreement, City hereby determines, for purposes of the
Agreement, that:
(i) the Project is substantially complete according to the Final Construction
Drawings and Technical Specifications;
(ii) Developer has completed the environmental remediation and abatement
on the Property, if any, required of Developer under Section 6 of the
Agreement, and
(iii) the City has issued a Certificate of Occupancy with respect to the Project.
This Certificate of Completion constitutes a determination that, for purposes of the Agreement
only, the obligations of Developer as to the construction of the Project have been satisfied, and
that such obligations shall cease and become of no further effect, except as otherwise provided
in this Certificate of Completion.
Further,
(1) The following Sections of the Agreement shall survive and remain in
effect, notwithstanding issuance of this Certificate of Completion
("Surviving Sections"): 4.4 (Subsurface, Surface and Building Conditions);
5.7 (Liens); 6.1.3 (Indemnification); 7 (Assignment and Transfer); 9
(Indemnity and Insurance); 10.2 (Covenants Running with the Land); 12
(Default and Remedies); 13 (Miscellaneous)
(2) Other than its right to enforce the Surviving Sections, City shall hereafter
be entitled to exercise no rights or remedies under the Agreement that it
may otherwise have been entitled to exercise with respect to the
construction of the Project or as a result of the breach of any provisions of
the Agreement relating to construction of the Project.
EXHIBIT G-1
DCAPDX\3316779.v15
This Certificate of Completion applies only to City's rights and remedies under the Agreement. It
does not apply in any way to City's rights and remedies under the Ground Lease or its rights
and authority in any other capacity.
to
IN WITNESS WHEREOF, City has caused this instrument to be executed this IQ day of
Tan tnarj , 202k
CITY OF TIGARD,
By:
Name: t eJ )37A161
Title: C A/A/V -6G
STATE OF OREGON )
) ss.
County of Washington )
This instrument was acknowledged before me on J miter) 1 V , 20 2yby
gepheti Py mei, the (--.1.9IMC"of the CITY OF TIGARD.
Notary Public for S '`` `t oke00'
My commission expires: J (I/ 13, Q
, OFFICIAL STAMP
JESSE€UM RAYMUNDO,.06t
)1.
NOTARY PUBLIC-OREGON' COMMISSION NO.1026312
MY COMMISSION EXPIRES JULY 13,2026
EXHIBIT G-2
DCAPDX\3316779.v15