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Resolution No. 17-31 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 17-_3/ A RESOLUTION APPROVING A NON-STATUTORY DEVELOPMENT AGREEMENT BETWEEN THE CITY OF TIGARD, OREGON AND TRIANGLE POINTE, LLC AND TRIANGLE POINTE TWO,LLC TO FACILITATE REDEVELOPMENT WHEREAS, the Agreement is pemnitted pursuant to the City's home rule authority and is not a statutory development agreement under ORS Chapter 94;and WHEREAS, Triangle Pointe, LLC and Triangle Pointe Two, LLC ("Developers") seek to redevelop their property as shown in Exhibit 1 to the Agreement and generally described as located south of SW 68d'Parkway, east of I-5,and north of Highway 217 ("Property");and WHEREAS, the phased development of the Property is expected to span the implementation of the Tigard Triangle Plan District code amendments, also referred to as the Tigard Triangle Lean Code, thereby changing certain development criteria over the course of the phased development;and WHEREAS, the purpose of this Agreement is to allow Developers to develop the Property in phases, consistent with this Agreement and applicable Tigard Community Development Code requirements and to provide to the public a regional trail extension;and WHEREAS,in Phase I, Developers propose to redevelop the Property to include a revised off-street parking area,including non-accessory parking,and a regional trail extension, shown on Exhibit 2 to the Agreement,in lieu of the extension of a public road across the Property. Phase II redevelopment may include a new office building that may exceed the currently allowed floor area ratio,after implementation of the Tigard Triangle Plan District code amendment in the fall of 2017. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: Council approves the Triangle Pointe Development Agreement,attached to this resolution as Exhibit A,to facilitate redevelopment of the subject property and provision of a regional trail extension across the subject property, and authorizes the City Manager to execute the Agreement. SECTION 2: This resolution is effective immediately upon passage. PASSED: This 7 t~ day of 2017. Mayo City of Tigard ATTEST: City Recorder-City of Tigar RESOLUTION NO. 17-31 Page 1 Exhibit A After recording return to: Michael C. Robinson Perkins Coie LLP 1120 NW Couch Street, Tenth Floor Portland, OR 97209-4128 NON-STATUTORY DEVELOPMENT AGREEMENT between CITY OF TIGARD, OREGON, and TRIANGLE POINTE, LLC and TRIANGLE POINTE TWO, LLC This Development Agreement ("Agreement") is made and entered into this day of , 20_ by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon ("City"), and TRIANGLE POINTE, LLC, and TRIANGLE POINTE TWO, LLC Oregon limited liability corporations (the "Developers") pursuant to the City's home rule authority and is not a statutory development agreement under ORS Chapter 94. The City and Developers are referred to jointly in this Agreement as the "Parties" and individually as a "Party," as the case may be. RECITALS A. Developers are the owners of that real property (the "Property") generally located south of SW 68th Parkway, east of 1-5 and north of Oregon Highway 217. The Property location is shown on Exhibit 1. The Property is in the area referred to as the "Tigard Triangle." 1of14 130510575.9 B. The Property is subject to the City's acknowledged Comprehensive Plan and land use regulations now in effect. The Property is zoned Mixed Use Employment ("MUE"). C. The current land use regulations impose a floor area ratio ("FAR") maximum of .4 on the Property. Tigard Community Development Code ("TCDC") 18.520.050.C.1. The City proposes to amend the land use regulations to eliminate the FAR requirement in the Tigard Triangle. Further, the land use regulations currently allow off-street parking ratios that allow the Developers adequate and necessary off-street parking on the Property, including non-accessory parking. The proposed off-street parking land use regulations would prohibit redevelopment of the off-street parking area with off-street parking spaces and non-accessory parking. If the Developers submit a land use or limited land use after the effective date of the proposed land use regulations, Developers will not be able to develop the Property as intended. D. Developers propose to redevelop the Property. The redevelopment will include a revised off-street parking area, including non-accessory parking, a new office building that will exceed the currently allowed FAR, and a regional trail extension in lieu of the extension of a public road across the Property. E. The City proposes to amend the land use regulations to provide "walkability" requirements, which will require Developers to dedicate right-of-way or easements in favor of the public for a regional trail extension and which will make it difficult for Developers to develop the Property as intended. F. The City and Developers acknowledge that if Developers proceed with a Site Development Review ("SDR") application now, they may redevelop the Property and construct a new office building, maintaining the approved number of off-street parking spaces but subject to the .4 FAR limitation, without being subject to the proposed walkability requirements. The City and Developers desire to allow redevelopment of the property as appropriate under the proposed land use regulation requirements in order to allow the proposed office building to be greater than the current FAR allowed, to allow non-accessory parking and to provide walkability requirements not now legally required to be provided by Developers. G. Non-accessory parking is currently a permitted use. The proposed land use regulations will treat non-accessory parking as a non-conforming use. The Project is unlikely to proceed without assurance that non-accessory parking will remain a conforming use. 2of14 130510575.9 H. The Property contains a stream adjacent to its north boundary. The stream is regulated by Clean Water Services ("CWS"). The Developers intend to make certain beneficial improvements to the riparian area adjacent to the stream as part of its redevelopment of the Property. I. The purpose of this Agreement is to allow Developers to develop the Property consistent with this Agreement and applicable TCDC requirements and to provide to the public a regional trail extension. J. Therefore, the City and Developers enter into this Development Agreement to provide for such mutually beneficial improvements. AGREEMENT In consideration of the mutual promises and performance obligations of each Party as set out in this Agreement, City and Developers hereby agree to the following terms and conditions and respective obligations: 1. Site Development Review Applications. Developers intend to submit two (2) SDR applications for redevelopment of the Property. The first SDR application (the "Phase 1 SDR Application") shall consist of the pad for the new office building on tax lot 2S101DA02300 to allow a .54 FAR office building, parking lot improvements on both tax lots, including non-accessory parking, the regional trail extension (a public pedestrian pathway) and stream improvements, all as described in this Agreement. The public pathway improvements shall be constructed in Phase 1. The second SDR application (the "Phase 2 SDR Application") shall consist of the .54 FAR office building application, if an SDR application is required under the then-applicable land use regulations. The building footprint and off-street parking ratio and layout may be allowed to change if the Developer changes the use of the office building. 2. Walkability Requirements. Developers agree to include a pedestrian pathway as the regional trail extension in the Phase 1 SDR Application and to install a pedestrian pathway located in a non-exclusive public easement, as shown in Exhibit 2. To provide walkability on the Property, the pedestrian pathway will consist of concrete and shall be ten feet (10') wide in a ten feet (10') wide public easement. The Developers shall record a non-exclusive easement in favor of the public over and across the pedestrian pathway so that the pedestrian pathway will be open to 3of14 130510575.9 any person for pedestrian or bicycle purposes. The pedestrian pathway will not be classified as a "sidewalk". The pedestrian pathway will connect to the existing regional trail located at the southeast corner of the Property. 3. Stream Improvements. Developers agree to improve the riparian area adjacent to the stream located adjacent to the north boundary of the Property by, at minimum, removing invasive species, and all such improvements shall be consistent with applicable City and CWS requirements. Such improvements shall be included in the Phase 1 SDR Application. 4. Non-Accessory Parking. 4.1 In consideration of Developers' commitments under this Agreement, the City agrees to allow approved non-accessory parking on the Property to continue as a conforming use and approval shall run with the land. 4.2 Notwithstanding any other provisions of the TCDC, for those developments which include non-accessory parking as a permitted use and for which a Site Development Review permit application was submitted prior to the effective date of the TCDC and later approved, the non-accessory parking shall not be classified as a non-conforming use or non-conforming development under Chapter 18.760. 5. Nature of Agreement. The City hereby confirms that it can approve and execute this Agreement pursuant to its home rule charter and not pursuant to ORS 94.504 et seq., and does further confirm that this Agreement does not constitute or concern the adoption, amendment, or application of the Statewide Planning Goals, a comprehensive plan provision, or a land use regulation. The City and Developers acknowledge and agree that Developers shall obtain any and all land use approvals required for the Project in due course in accordance with all applicable laws and regulations pursuant to the terms of this Agreement. Specifically, the Parties agree that approval and execution of this Agreement does not annex, zone, divide, or grant any other land use approval for the Property or the Project and does not impinge upon the City's future review of Developers' applications for the Project. The Parties further agree that each Party has the authority to adopt this Agreement outside of ORS Chapter 94 and the adoption of this Agreement is not, nor does it establish, a Local Improvement District. 4of14 130510575.9 6. Compliance with all Local and State Laws. 6.1 In carrying out this Agreement, the Developers shall follow and comply with all other applicable local and state laws, including any requirement that state law may place on the Developers to pay prevailing wages for construction of the improvements required by this Agreement. 6.2 The City agrees that this Agreement may be used as evidence to support a finding of adequacy for public improvements as required by applicable provisions of the Tigard Municipal Code, Title 18, "Land Development Code" for subsequent land use, limited land use, expedited land divisions, permits and zoning map amendments for the Project. 6.3 The parties agree that this Agreement is not inconsistent with current TCDC requirements. 7. Assignability of Agreement. This Agreement may be assigned by the Developers, in whole or in part, with prior written notice to the City. The terms and conditions contained in this Agreement shall, subject to the provisions of this section, apply to and bind the heirs, successors, personal representatives, and assigns of the Parties hereto. 8. Remedies. Each Party shall have all available remedies at law or in equity to recover damages and compel the performance of the other Party pursuant to this Agreement. The rights and remedies afforded under this Agreement are not exclusive and shall be in addition to and cumulative with any and all rights otherwise available at law or in equity. The exercise by either Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different time, of any other such remedy for the same default or breach or of any of its remedies for any other default or breach by the other Party, including, without limitation, the right to compel specific performance. 9. Miscellaneous Provisions. 9.1 Notice. A notice or communication under this Agreement by either Party shall be in writing and shall be dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by either personal delivery or nationally-recognized overnight courier (such as UPS or Federal Express) or by facsimile transmission, and 5of14 130510575.9 9.1.1 In the case of a notice or communication to Developers, addressed as follows: Ryan Schera Triangle Pointe, LLC 901 NE Glisan Street, Suite 100 Portland, OR 97232 Ryan Schera Triangle Pointe Two, LLC 901 NE Glisan Street, Suite 100 Portland, OR 97232 With copy to: Michael C. Robinson Perkins Coie LLP 1120 NW Couch Street, Tenth Floor Portland, Oregon 97209-4128 9.1.2 In the case of a notice or communication to City, addressed as follows: Marty Wine City Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 With copy to: Shelby Rihala City Attorney Jordan Ramis, LLC 2 Centerpointe Drive, 6th Fir. Lake Oswego, OR 97035 or addressed in such other way in respect to a Party as that Party may, from time to time designate in writing dispatched as provided in this section. 9.2 Headings. Any titles of the sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 6of14 130510575.9 9.3 Counterparts. In the event this Agreement is executed in two (2) or more counterparts, each counterpart shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 9.4 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 considered a waiver of any other rights of the Party making the waiver. No waiver by the City or Developers of any provision of this Agreement or any breach thereof shall be of any force or effect unless in writing; and no such waiver shall be construed to be a continuing waiver. 9.5 Time of the Essence. Time is of the essence under this Agreement. 9.6 Choice of Law. This Agreement shall be interpreted under the laws of the State of Oregon. 9.7 Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the State of Oregon, except that if the last day of any period falls on any Saturday, Sunday, or legal holiday in the State of Oregon, the period shall be extended to include the next day which is not a Saturday, Sunday, or such a holiday. 9.8 Construction. In construing this Agreement, singular pronouns shall be taken to mean and include the plural and the masculine pronoun shall be taken to mean and include the feminine and the neuter, as the context may require. 9.9 Severability. If any clause, sentence or any other portion of the terms and conditions of this Agreement becomes illegal, null or void for any reason, the remaining portions will remain in full force and effect to the fullest extent permitted by law. 9.10 Place of Enforcement. Any action or suit to enforce or construe any provision of this Agreement by any Party shall be brought in the Circuit Court of the State of Oregon for Washington County, or the United States District Court for the District of Oregon. 9.11 Good Faith and Reasonableness. The Parties intend that the obligations of good faith and fair dealing apply to this Agreement generally and that no negative inferences be drawn by the absence of an explicit obligation to be reasonable in any portion of this Agreement. The obligation to be reasonable 7of14 130510575.9 shall only be negated if arbitrariness is clearly and explicitly permitted as to the specific item in question, such as in the case of a Party being given "sole discretion" or being allowed to make a decision in its "sole judgment." 9.12 Condition of City Obligations. All City obligations pursuant to this Agreement which require the expenditure of funds are contingent upon future appropriations by the City as part of the local budget process. Nothing in this Agreement implies an obligation on the City to appropriate any such monies. 9.13 Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the Parties agree to cooperate in defending such action. 9.14 Enforced Delay, Extension of Times of Performance. In addition to the specific provisions of this Agreement, performance by any Party shall not be in default where delay or default is due to war; insurrection, strikes, riots, floods, drought, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by governmental entities other than the City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, litigation or similar bases for excused performance which is not within reasonable control of the Party to be excused. 9.15 Other Necessary Acts. Each Party shall execute and deliver to the other all such further instruments and documents and take such additional acts (which, in the case of the City, shall require adopting necessary ordinances and resolutions) as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other Parties the full and complete enjoyment of rights and privileges hereunder. 9.16 Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter covered by this Agreement. 9.17 Interpretation of Agreement. This Agreement is the result of arm's length negotiations between the Parties and shall not be construed against any Party by reason of its preparation of this Agreement. 9.18 Capacity to Execute; Mutual Representations. The Parties each warrant and represent to the other that this Agreement constitutes a legal, valid, and binding obligation of that Party. Without limiting the generality of the foregoing, each Party represents that its governing authority has authorized the 8of14 130510575.9 execution, delivery, and performance of this Agreement by it. The individuals executing this Agreement warrant that they have full authority to execute this Agreement on behalf of the entity for whom they purport to be acting. Each Party represents to the other that neither the execution and delivery of this Agreement, nor performance of the obligations under this Agreement will conflict with, result in a breach of, or constitute a default under, any other agreement to which it is a party or by which it is bound. 9.19 Amendment or Modification. No amendment, change, or modification of this Agreement shall be valid, unless in writing and signed by the Parties. 9.20 Relationship. Nothing herein shall be construed to create an agency relationship or a partnership or joint venture between the Parties. 9.22 Recording; Covenant. The City shall cause this Agreement to be recorded among the Deed Records in and for Washington County, Oregon. This Agreement shall constitute a covenant running with the Property and shall be binding upon and be enforceable by the Parties and their successors and assigns. 9.23 Effective Date. This Agreement shall take effect upon execution and approval by both Parties. 9.24 Term of Agreement. This Agreement shall be effective until it is fully implemented. This term shall be tolled in the event of an appeal of any land use decision for the Property until a final appellate judgment is entered. 10. City Manager Authority to Enter into Addenda to this Agreement. The City Manager may, at her discretion, enter into such addenda to this Agreement without City Council approval as she determines are necessary to fully implement the intent of the Agreement. Executed as of the day and year first above written. 9of14 1305 105 75.9 Triangle Pointe, LLC, an Oregon limited liability corporation By: Print Name: Title: STATE OF OREGON ) ss. County of ) The foregoing instrument was acknowledged before me this_day of 2017, by as of Triangle Pointe, LLC, an Oregon limited liability corporation , on behalf of said company. Notary Public for Oregon My Commission Expires: SEAL: 10 of 14 130510575.9 Triangle Pointe Two, LLC, an Oregon limited liability corporation By: Print Name: Title: STATE OF OREGON ) ss. County of ) The foregoing instrument was acknowledged before me this_day of 2017, by as of Triangle Pointe Two, LLC, an Oregon limited liability corporation , on behalf of said company. Notary Public for Oregon My Commission Expires: SEAL: 11 of 14 130510575.9 CITY OF TIGARD, OREGON By: Print Name: Title: STATE OF OREGON ) ss. County of ) The foregoing instrument was acknowledged before me this day of 2017, by as of the City of Tigard, Oregon, duly authorized by the City Council to execute this Agreement on behalf said city. Notary Public for Oregon My Commission Expires: SEAL: 12 of 14 130510575.9 2S 1 ' i r'.c,.✓.R�r.-+..c.R!.l_i+.R..�..f'O iR.. I 's�4} '�J I ---. Ilk .. .. ...... ... ._ .. ..ANI. ..._•i _._ -. W ��`•� m � t � � A I -'! ' ►o • I �✓ e � ' � iii sl � r � � m 1%. �L� } �' s _PARKWAY \ 9 ; i 7— I =�K �. °2 „�. 23-81 `► i VARNS � STREET b`,, y "' ii ;:. �ai41Z{J —x— STfiEET �• i Z I X .•� bw ..Fqy r a �,'i\ OI2 LLJ Im Sw FIA LOOP •�e 3 wo �•t : �� I I I � Site ' I � �• � A•�II_al_MiR�Y_ I o 23-74 •- 2S 1( EXHIBIT 2 � Y OD iCO IT- � fJ • "rr, rn nrT,i7 U' ti TIT Ilfl) 4 MAY 3,7D17 TRIANGLE POINTE Job i 219D59DA0' o n uo EXHIBIT 2 - PEDESTRIAN PATH 14 of 14 130510575.9