Tigard Senior Housing Limited Partnership - Maintenance and Cost Sharing Agreement AG243001
MAINTENANCE AND COST SHARING AGREEMENT
THIS MAINTENANCE AND COST SHARING AGREEMENT (this "Agreement") is made and
entered into as of January 5 , 2024 (the "Effective Date") by and between the City of Tigard, a municipal
corporation of the State of Oregon (the "City"), and Tigard Senior Housing Limited Partnership, an Oregon
limited partnership (the "Partnership"). The City and the Partnership are each referred to as a "Party" and
collectively referred to herein as the "Parties".
RECITALS
A. The City is the owner of certain real property with a street address of 8815 SW O'Mara Street, Tigard,
Oregon (the "Senior Center Property"), upon which is located a senior center (the "Tigard Senior
Center") and certain surface parking areas (the "Senior Center Parking Area");
B. The City is also the owner of certain real property with a street address of 8803 SW O'Mara Street,
Tigard, Oregon (the "Housing Property" and, together with the Senior Center Property, collectively
referred to as the "Properties"), which is the subject of a Ground Lease dated as of April 15, 2022, by
and between the City, as landlord, and the Partnership, as tenant (the "Ground Lease"), and upon
which property is located an affordable senior housing development (the "Housing Project") and
certain surface parking areas (the "Housing Project Parking Area" and, together with the Senior
Center Parking Area, collectively referred to as the "Parking Areas");
C. The City and the Partnership are parties to that certain Parking Management Agreement dated as of
April 15, 2022, providing for shared use of the Parking Areas (the "Parking Management
Agreement"); and that certain Private Stormwater Facilities Agreement dated as of July 17, 2023 and
recorded in the records of Washington County, Oregon as instrument number 2023-034730;
D. The Parties mutually desire to enter into this Agreement to provide forthe maintenance and cost sharing
with respect to the Parking Areas and other Common Areas (as such term is defined herein).
NOW THEREFORE,in consideration of the foregoing and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions. The following defined terms shall have the meanings set forth below for purposes of this
Agreement. All capitalized terms used but not defined herein shall have the meanings assigned to
them in the Ground Lease.
a. Common Areas:The term"Common Area" shall refer to all areas (and if the context so requires,
all Common Area Improvements) located within the Parking Areas, all landscaped and/or
irrigated areas on the Properties, all areas on the Properties containing Stormwater Facilities,
and the sidewalks, drive aisles and driveways as depicted on the Site Plan which is attached
hereto as Exhibit A.
b. Common Area Improvements: The term "Common Area Improvements" shall refer to all
improvements located from time to time in, on, under or with respect to the Common Areas,
including without limitation (i) curbs, gutters, light fixtures and walkways located within the
Parking Areas and other sidewalks and outdoor lighting facilities located within the Common
Area; (ii) Stoiniwater Facilities; (iii) landscaping and irrigation systems located on the
Properties; and (iv) any and all replacements of the foregoing improvements.
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c. Properties: The term "Properties" shall mean both the Senior Center Property and the Housing
Project Property.
d. Property: The term "Property" shall mean either the Senior Center Property or the Housing
Project Property as the context dictates.
e. Site Plan: The term"Site Plan" shall refer to the plan depicting the Housing Project and Senior
Center attached hereto as Exhibit A.
f. Stormwater Facilities: The term "Stormwater Facilities" shall refer to facilities and systems
located on the Properties for the transmission or other provision of stormwater, including storm
water detention or retention, catch basins,pipes, and storm drainage systems.
2. Partnership Responsibilities.
a. The Partnership shall be responsible for general maintenance, upkeep, inspection, cleaning and
repairs to the outdoor lighting located within the Common Areas and shall pay all expenses
related to the operation and maintenance of such lighting facilities, which expenses shall include
the cost of electricity supplied to such site lighting as measured by a separate meter and paid
directly by the Partnership to the utility provider.
b. The Partnership shall be responsible for snow removal within the Housing Project Parking Area
and the shared drive aisle providing access to the Housing Parking Area, and shall pay all
expenses related thereto.
3. City Responsibilities:
a. The City shall maintain the landscaping located on the Properties in an attractive condition and
shall maintain the irrigation systems serving such landscaping in good repair and condition and
in the same manner and extent to which it maintains other City landscaping and irrigation
facilities. The City shall pay all expenses related to the maintenance of such landscaping and
irrigation facilities, which expenses shall include the cost of water supplied to the Properties'
landscaping as measured by a separate meter and paid directly by the City to the utility provider.
b. Except for the snow removal that is the responsibility of the Partnership as set forth above, the
City shall be responsible for the cleaning, debris removal, leaf-blowing and sweeping of the
Parking Areas and shared drive aisles. The City shall conduct regular janitorial upkeep to
maintain the Parking Areas and shared drive aisles in the same manner and extent to which it
maintains other City parking areas.
c. The City shall be responsible for general maintenance, upkeep, inspection, cleaning and repairs
to the Stormwater Facilities located in the Common Areas and shall pay all expenses related to
the operation and maintenance of such Stormwater Facilities.
4. Shared Responsibilities:
a. The Parties anticipate that approximately every five(5)years the drive aisles and Parking Areas
will require substantial maintenance, which may include resurfacing, repaving and restriping.
The Parties agree to cooperate with each other to conduct such maintenance activities on both
Properties and further agree that the Partnership's allocable share of such expenses shall be
40% and the City's allocable share shall be 60%.
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b. Except for the specific responsibilities set forth herein, each Party shall otherwise be responsible
for maintaining its own Property in good repair and condition in accordance with the Ground
Lease and the Parking Management Agreement and all applicable statutes, ordinances, rules,
regulations and government orders.
c. The Partnership and the City shall work together to assure at all times that use of the Common
Areas meets the intent and requirements of the City's codes, ordinances and this Agreement,
and the Parties intend to work collaboratively and cooperatively with respect to the ongoing
operation and maintenance of the Common Areas regardless of which Party holds responsibility
for particular maintenance and operation activities.
d. Each Party, as grantor, hereby grants to the other Party, as grantee, and its permittees, a
nonexclusive right of ingress and egress by vehicular and pedestrian traffic upon, under, over
and across that portion of such grantor Party's Property to the extent necessary to accomplish
the purposes of this Agreement.
e. The Partnership and the City shall exercise the rights outlined in this Agreement in a reasonable
manner and shall not obstruct or otherwise use the Common Areas in a manner that would
materially or substantially interfere with the use thereof by the other Party or its authorized
users; provided, that each Party shall have the right to temporarily close off portions of the
Common Areas for maintenance and repair as necessary in a manner that will not unreasonably
inconvenience users of the Senior Center and Housing Project tenants, invitees and guests.
Each Party shall give prior written notice to the other Party of any significant closing of any
portion of the Common Areas contemplated for such purposes.
f. Prior to commencing any major construction, renovation, maintenance, or similar work within
the Common Areas, each Party shall give the other Party fourteen(14) days'written notice. All
work performed in the Common Areas must meet applicable state, federal, and local
regulations.
g. Each Party may delegate its rights and obligations hereunder with respect to the maintenance
and operation of the applicable Common Areas to another person or entity qualified and
experienced in the operation and maintenance of such facilities.
5. Force Majeure. If either Party's performance of an obligation under this Agreement (excluding a
monetary obligation) is delayed or prevented in whole or in part by act of God,fire,earthquake,floods,
explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability
to procure labor, equipment, facilities' materials or supplies in the open market, failure of
transportation, strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of
governmental or civil or military authorities, governmental action or inaction, or any other cause,
whether similar or dissimilar to the foregoing, not within the respective control of such obligated
Party, the Party will be excused, discharged, and released of performance to the extent that such
performance or obligation (excluding any monetary obligation) is so limited or prevented by the
occurrence.
6. Maintenance Deficiency. Upon becoming aware of a need for maintenance or repair of the Common
Area Improvements or any element thereof for which the other Party is responsible hereunder, a Party
("Notifying Party") may give written notice to the responsible Party ("Notified Party") of such
maintenance deficiency. If, within thirty(30) days of receipt of such notice, the Notified Party has
not satisfactorily cured such maintenance deficiency, or diligently pursued a cure in the event the
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deficiency could not be cured within thirty (30) days, the Notifying Party may, but is under no
obligation to,perform such maintenance or repair and the Notified Party shall promptly reimburse the
performing Party for all reasonable costs and expenses incurred by the Notifying Party in the
performance of such work; provided, that if the Notifying Party in good faith shall deem that an
emergency is occurring or has occurred so that a deficiency requires immediate cure, then the
Notifying Party may act promptly and take such action as is necessary to cure the alleged deficiency
and shall act with reasonable promptness and good faith to give notice to the Notified Party of the
doing of such emergency work. In the event of a disagreement as to any maintenance needs, the
Parties agree to use best efforts to resolve any differences in a timely manner.
7. Insurance. The Partnership shall maintain commercial general liability insurance in no less amount
and otherwise in accordance with the terms for liability insurance set forth in the Ground Lease. The
City shall maintain commercial general liability insurance with coverages commercially reasonable
for its Property and the uses thereon covering injuries to persons and damage to property in connection
with the obligations arising under this Agreement.
8. Mutual Indemnity. The Partnership agrees to indemnify, defend and hold harmless the City, its City
Council, officers,employees, and agents from and against all liability arising from actions,suits,claims
or demands attributable to the negligent acts or omissions or willful misconduct of the Partnership or its
representatives, employees, agents, or invitees in performance of this Agreement. Subject to the
limitations of the Oregon Tort Claims Act, City agrees to indemnify, defend, and hold harmless the
Partnership and its partners and agents from and against all liability arising from actions, suits,claims or
demands attributable to the negligent acts or omissions or willful misconduct of City or its
representatives, employees, or agents in performance of this Agreement.
9. Notices. All notices or requests required or permitted under this Agreement shall be in writing, shall
be personally delivered or sent by certified mail, return receipt requested,postage prepaid,or by email
transmission and shall be deemed given three (3) days following the date when mailed or on the date
when delivered or emailed with notice of receipt requested (provided confirmation of email receipt
has been received). All notices or requests shall be sent to the City and the Partnership addressed as
follows:
If to the Partnership: Tigard Senior Housing Limited Partnership
c/o Northwest Housing Alternatives, Inc.
2316 Southeast Willard Street
Milwaukie, OR 97222
Attention: Trell Anderson
Email: TAnderson@NWHousing.org
If to the City: City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
Attention: Sean Family
Email: Sean@tigard-or.gov
Either Party may change the address to which notices shall be sent by notice to the other
Party.
10. General.
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a. This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of Oregon.
b. To the extent that provisions of this Agreement regarding maintenance obligations with respect
to the Parking Areas conflict with the Parking Management Agreement, the provisions of this
Agreement shall control. To the extent that provisions of this Agreement conflict with the
Ground Lease, the provisions of the Ground Lease shall control, provided, that to the extent
that the provisions of this Agreement setting forth specific maintenance obligations with respect
to the Common Areas (including without limitation Section 2, Section 3 or Section 4(a) of this
Agreement) directly conflict with the Ground Lease (including without limitation Section 2.4,
Section 9.1 and Section 10 of the Ground Lease), the provisions of this Agreement shall control
with respect to such maintenance obligations.
c. Should any of the provisions of this Agreement be found to be invalid, illegal or unenforceable
by any court of competent jurisdiction, such provision shall be stricken and the remainder of
this Agreement shall nonetheless remain in full force and effect unless striking such provision
shall materially alter the intention of the parties.
d. This Agreement may be executed in counterparts, each of which shall be deemed an original,
but which when taken together shall constitute one and the same instrument. Original
signature pages may be removed from any such counterpart and attached to an identical
counterpart for purposes of assembling fully executed originals of this Agreement.
e. In the event any action is brought to enforce any of the provisions of this Agreement,the parties
agree to be subject to exclusive in personam jurisdiction in the Washington County Circuit
Court for the State of Oregon and agree that in any such action venue shall lie exclusively at
Washington County, Oregon.
f. No waiver of any right under this Agreement shall be effective unless contained in writing
signed by a duly authorized officer or representative of the party sought to be charged with the
waiver and no waiver of any right arising from any breach or failure to perform shall be deemed
to be a waiver of any future right or of any other right arising under this Agreement.
g. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the
Housing Project or any right,benefit or easement in or to all or any part of the Housing Project,
to the general public or for the general public or for any public purpose whatsoever, it being the
intention of the Parties that this Agreement shall be strictly limited to and for the purposes
herein expressed.
h. The provisions of this Agreement are for the exclusive benefit of the Parties, and their respective
successors and assigns, and not for the benefit of any third person, including any tenant of the
Housing Project or user of the Senior Center, nor shall this Agreement be deemed to have
conferred any rights, express or implied, upon any third person. It is expressly understood and
agreed that no modification or amendment, in whole or part, shall require any consent or
approval on the part of any tenant in the Housing Project or user of the Senior Center.
i. This Agreement shall remain in full force and effect so long as the Ground Lease (or a
replacement of such Ground Lease as permitted under Section 11.2(d) of the Ground Lease)
remains in full force and effect;provided, that either Party may terminate this Agreement by
providing no less than ninety (90) days' advance written notice to the other Party. This
Agreement shall not be otherwise amended,restated,replaced, or otherwise modified without
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the written approval of both Parties.
[Signature Page Follows]
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IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the date and year
first above written.
CITY OF TIGARD
Sie/v-e' R y we e r
By:
Printed Name: Steve Rymer
Its: City Manager
TIGARD SENIOR HOUSING LIMITED PARTNERSHIP,
an Oregon limited partnership
By: Tigard Senior Housing GP LLC,
an Oregon limited liability company
Its: General Partner
By: Northwest Housing Alternatives, Inc.,
an Oregon nonprofit public benefit corporation
Its: Manager
By: Qt
Trell Anderson, Executive Director
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Exhibit "A"
Site Plan
[see attached]
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SITE PLAN
PARCEL 1, PARTITION PLAT 2020-014
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