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Dartmouth Development Partners, LLC ~ AG193002 ~ Development Assistance Agreement: SDC Waiver DEVELOPMENT ASSISTANCE AGREEMENT:SDC WAIVER (72ND AND DARTMOUTH) This Development Assistance Agreement providing for an SDC waiver (72ND AND DARTMOUTH) (this "Agreement") is made and entered this 1-71 day of June, 2019 (the "Effective Date'), by and between the TOWN CENTER DEVELOPMENT AGENCY, the duly designated urban renewal agency of the City of Tigard ("TCDA"), and DARTMOUTH DEVELOPMENT PARTNERS, LLC, an Oregon limited liability company, or its assignee ("Developer"). TCDA and Developer may be referred to jointly in this Agreement as the"Parties"and individually as a "Party." RECITALS A. In furtherance of the objectives of Oregon Revised Statutes,Chapter 457 and the Tigard Triangle Urban Renewal Plan in effect on the Effective Date(the"UR Plan"),the TCDA desires to enter into this Agreement to facilitate the development of the Project(defined below)on property located at 11860-11990 SW 72nd Avenue (the"Property"). B. The Property is currently unimproved and is bounded on three sides by SW 72"d Avenue,SW Dartmouth Street,SW Clinton Street and is depicted on Exhibit A attached to this Agreement. C. Developer intends to develop on the Property a mixed-use multi-family residential development that will include approximately 215 residential units,ground floor commercial space, parking, and enhanced streetscape improvements (the"Project").The TCDA has determined that the Project will achieve all of the public goals desired for the Property,act as a catalyst for development in the Tigard Triangle Urban Renewal Area (the"URA"),fully capitalize the public investments in the Project,and continue to capitalize other public investments in the URA. D. The Parties contemplate that the Project will transform the Property into a vibrant,sustainable mixed-use, residential area.The Project is consistent with Goal 5 of the UR Plan and will "promote high quality development of retail,office and residential uses that support and are supported by public streetscape,transportation, recreation and open space investments." 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: 1. Systems Development Charities; Project Plans. 1.1. Developer's obligation to pay the first$1,000,000 of system development charges (collectively, "SDCs")triggered by the development of the Project shall be waived, and TCDA shall reimburse the City of Tigard in the amount of$1,000,000. 1.2. Development of the Property in accordance with this Agreement is a material inducement to waiver of the SDC's provided for in Section 1.1. and such waiver is contingent on satisfaction of {00888564;7} 1 SDC Reimbursement Agreement—SW 72"d and Dartmouth the following conditions being satisfied or waived by both TCDA and Developer, prior to the waiver of SDC fees as set forth in Section 1.1: 1.2.1. Developer shall have prepared and submitted to TCDA conceptual plans for the Project (the"Project Plans")with sufficient detail to demonstrate the Project's compliance with the UR Plan and the description of the Project set forth in Recital C. TCDA staff will review and provide tentative approval or disapproval within ten (10) days after receiving the Project Plans. Upon completing any revisions agreed to by Developer and TCDA staff, TCDA staff will provide the Project Plans with staff recommendations to the TCDA Board for its review and approval. The TCDA Board shall then review and either approve the Project Plans or provide detailed comments describing how the Project Plans fail to conform to the UR Plan or the description of the Project within forty-five (45) days after receiving the Project Plans from TCDA staff. The TCDA Board shall have no other basis to disapprove the Project Plans. Failure of the TCDA Board to timely approve the Project Plans or provide detailed comments on the Project Plans shall constitute acceptance. If the Parties are unable to resolve any dispute regarding whether or not the Project Plans conform to the UR Plan or description of the Project (including the TCDA's failure to approve the Project Plans),such dispute shall be submitted to dispute resolution in accordance with Section 8("Dispute Resolution"). The Project plans approved by the TCDA or through Dispute Resolution are the"Approved Project Plans". 1.2.2. Developer shall have obtained all land use approvals required by the City of Tigard for the Project and permits required for the construction of the Project in accordance with the Approved Project Plans shall be ready to be pulled subject only to the payment of permit fees. No appeal of any required approval or permit shall have been filed, and the time for any such appeal shall have expired. If an appeal is filed,this condition shall be satisfied on final resolution of the appeal,except that final resolution shall not be required if the issue(s) involved in the appeal is such that customary bonding or indemnification represents a reasonable basis for proceeding with the Project. 1.3. The construction of the Project will conform in all material respects to the Approved Project Plans (subject to such modifications as are approved by TCDA staff) and all applicable City development approvals. If TCDA believes that Project does not conform in all material respect to the Approved Project Plans,then TCDA shall provide written notice of such nonconformance to Developer. If Developer disputes TCDA's assertion that the Project does not conform to the Approved Project Plans,the Parties shall resolve the dispute by Dispute Resolution. The Parties recognize that any such dispute must be resolved expeditiously. 1.4. Staff approval or recommendation to the TCDA Board for approval of the Project plans or modifications to such Project plans shall not be unreasonably withheld,conditioned or delayed. 2. DEVELOPMENT 2.1. Except for the SDC fee waivers set forth in Section 1.1, Developer,will design, construct and complete the Project in accordance with the Approved Project Plans as provided in Section 1, without additional public funding participation, except for tax abatement programs generally available to similar projects within the City,the URA and the Vertical Housing Development {00888564;71 2 SDC Reimbursement Agreement—SW 72"d and Dartmouth Zone. Subject to events and circumstances outside of Developer's reasonable control, Developer will use commercially reasonable efforts to begin and to complete development of the Project as set forth in the Project Schedule attached as Exhibit B,subject to the terms of this Agreement. 2.2. TCDA is not the developer of the Project. This Agreement is not intended to be a contract providing for construction by TCDA either directly or through a contractor. Developer is solely responsible for selecting a construction contractor. The rights and responsibilities of Developer,the general construction contractor and any subcontractors,shall be provided for in a construction contract to which TCDA is not a party. 3. REPRESENTATIONS 3.1.TCDA Representations. TCDA hereby represents to Developer the following: 3.1.1. TCDA has the legal power, right, and authority to enter into this Agreement and the instruments referred to herein and to consummate the transactions contemplated herein. All requisite action has been taken by TCDA in connection with entering into this Agreement, the instruments referred to herein, and the consummation of the transactions contemplated herein. No further consent of any creditor, investor, judicial or administrative body,governmental authority or other party is required. 3.1.2. This Agreement and all documents required to be executed by TCDA are and shall be valid, legally binding obligations of and enforceable against TCDA in accordance with their terms. 3.1.3. 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 TCDA is a pa rty. 3.1.4. The persons executing this Agreement and the instruments referred to herein on behalf of TCDA have the legal power, right and actual authority to bind TCDA to the terms and conditions of this Agreement. 3.2.Developer Representations. Developer hereby represents to TCDA the following: 3.2.1. Developer is a limited liability company duly formed and existing in the State of Oregon. 3.2.2. Developer has full power and authority to enter into and perform this Agreement in accordance with its terms and does not require the consent of any third party that has not been secured. All requisite action (corporate, trust, partnership, membership or otherwise) has been taken by Developer in connection with entering into this Agreement, the instruments referred to herein, and the consummation of the transactions contemplated herein. No further consent of any partner, shareholder, {00888564;7} 3 SDC Reimbursement Agreement—SW 72nd and Dartmouth creditor, investor,judicial or administrative body, governmental authority or other party is required. 3.2.3. This Agreement and all documents required to be executed by Developer are and shall be valid, legally binding obligations of and enforceable against Developer in accordance with their terms. 3.2.4. 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 Developer is a party. 3.2.5. The persons executing this Agreement and the instruments referred to herein on behalf of Developer have the legal power, right and actual authority to bind Developer to the terms and conditions of this Agreement. 4. BOLI. As soon after the Effective Date as reasonably possible, Developer shall submit this Agreement and other required or relevant documents to the Oregon Bureau of Labor and Industries ("BOLI") for review and to seek a determination letter from BOLI (the "BOLI Determination Letter") stating that ORS 279C.810 to 279C.870 and the administrative rules adopted thereunder (the "Oregon Prevailing Wage Laws") do not apply to any portion of the development and construction of the Project. S. ASSIGNMENT AND TRANSFER PROVISIONS 5.1.Restrictions on Transfer of the Property and Assignment of the Agreement. Except as provided in this Section 5.1, Developer shall not partially or wholly transfer Developer's interest in this Agreement without the prior written approval of the TCDA, which may be withheld in TCDA's reasonable discretion. 5.2.Approved Transfers. Notwithstanding Section 5.1 above, and provided that Developer provides TCDA with copies of all agreements related to the transfer,TCDA hereby consents to: 5.2.1. An assignment of Developer's rights under this Agreement to any entity in which Developer or an affiliate thereof owns a direct or indirect interest. 5.2.2. The collateral assignment of rights under this Agreement to any Mortgagee. For purposes of this Section 5.2.2, "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 Developer 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. {00888564;7} 4 SDC Reimbursement Agreement—SW 72nd and Dartmouth 6. DISPUTE RESOLUTION If a dispute arises under this Agreement,the Party claiming the existence of a dispute shall provide written notification of the dispute to the other Party. A meeting will be held promptly between the Parties, and subject to Section 9.11 below, attended by representatives of the Parties with decision- making authority regarding the dispute to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21)days,the Parties will thereafter seek to resolve the dispute by binding arbitration. The arbitration shall be conducted in accordance with Oregon's Uniform Arbitration Act(ORS 36.600 et seq. or ay successor statues thereto); provided, however,the arbitrator shall be an attorney licensed to practice law in Oregon who has at least ten (10)years of experience in commercial construction or commercial real estate, including public/private development agreements. Developer shall not apply for building permits for the Project pending the outcome of a dispute that the Parties have submitted to Dispute Resolution. 7. CONTINUING COVENANTS SURVIVING TERMINATION OF AGREEMENT OR COMPLETION OF CONSTRUCTION. The following Sections of this Agreement shall survive and remain in effect for the periods identified herein:Section 2(DEVELOPMENT);Section 3 (REPRESENTATIONS);Section 6 (DISPUTE RESOLUTION); and Section 9(MISCELLANEOUS). 8. TERMINATION. This Agreement shall automatically terminate and be of no further force or effect upon substantial completion of the Project. As used in this Section 8, "substantial completion" means that date that Developer has obtained a temporary certificate of occupancy for the Project. 9. MISCELLANEOUS PROVISIONS 9.1.Notice. Any notice or communication under this Agreement by either Party to the other shall be deemed given and delivered on the earlier of actual delivery or refusal to accept delivery thereof if sent by one of the following means with all applicable delivery and postage charges prepaid: (a) registered or certified U.S. mail, postage prepaid, return receipt requested; (b) personal delivery; (c) nationally recognized overnight courier service (e.g. Federal Express); or (d) if simultaneously delivered by another means allowed hereunder, e-mail, with receipt of confirmation that such transmission has been received. In the case of a notice or communication to Developer,addressed as follows: ScanlanKemperBard Companies, LLC. Attn: John Olivier 222 SW Columbia Street,Suite 700 Portland, OR 97201 Email: jolivier@skbcos.com With a copy to: Real Estate Investment Group Attn: Nicholas Diamond 2839 SW 2nd Avenue Portland, OR 97201 Email: ndiamond@reig.com {00888564;7} 5 SDC Reimbursement Agreement—SW 72nd and Dartmouth In the case of a notice or communication to TCDA, addressed as follows: Town Center Development Agency Attn: Sean Farrely 13125 SW Hall Blvd Tigard, OR 97223 Email:sean@tigard-or.gov or addressed in such other way in respect to either Party as that Party may, from time to time, designate in writing dispatched as provided in this section. Notices may be given by counsel to a Party. 9.1.1. If either Party's contact person or address for notices changes, that Party shall provide the other Party with the updated contact information. 9.2.Headings. 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. 9.3.Counterparts.This Agreement may be executed in counterparts, each of which 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 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. 9.5.Attorneys' Fees. If a suit, action, arbitration, or other proceeding of any nature whatsoever, including, without limitation, any proceeding under U.S. Bankruptcy Code, is instituted to interpret or enforce any provision of this Agreement, or with respect to any dispute relating to this Agreement, including, without limitation, any action in which a declaration of rights is sought or an action for rescission, the prevailing or non-defaulting party shall be entitled to recover from the losing or defaulting party its reasonable attorneys', paralegals', accountants', and other experts' fees and all other fees, costs and expenses actually incurred and reasonably necessary in connection therewith, as determined by the judge at trial or on any appeal in addition to all other amounts provided by law. This provision shall cover costs and attorney fees related to or with respect to proceedings in U.S. Bankruptcy Court, including those related to issues unique to bankruptcy law. 9.6.Governing Law. This Agreement shall be governed by Oregon law, without regard to principles of conflicts of law. 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,the period shall be extended to include the next day which is not a Saturday,Sunday or legal 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 {00888564;7} 6 SDC Reimbursement Agreement—SW 72nd and Dartmouth feminine and the neuter, as the context may require. As used in this Agreement, "including" means including without limitation and "shall" means mandatory and imperative. 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. Entire Agreement. This Agreement and its exhibits are the entire agreement between the Parties with respect to the subject matter hereof. There is no other oral or written agreement between the Parties with regard to this subject matter. There are no oral or written representations or warranties made by either Party, implied or express, other than those contained in this Agreement. 9.11. Amendments and Modifications. Any modifications to this Agreement must be made in writing and executed by all Parties, with the approval of the TCDA Board, if required. Notwithstanding this general requirement, the TCDA Redevelopment Project Manager may approve modifications to this Agreement without TCDA Board approval so long as TCDA's economic obligations are not materially increased. Except as provided for elsewhere in this Agreement, whenever consent or approval by TCDA is required under the terms of this Agreement, all such consents or approvals shall be given in writing from the TCDA Redevelopment Project Manager or his or her designee. 9.12. Successors and Assigns. Subject to the provisions of Section 5,the benefits conferred by this Agreement, and the obligations assumed thereunder, shall inure to the benefit of and bind the successors and permitted assigns of the Parties. 9.13. 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. 9.14. 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. 9.15. Time of Essence. Time is of the essence of this Agreement. 9.16. 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. (Remainder of page intentionally left blank; Signatures appear on the following page) {00888564;7} 7 SDC Reimbursement Agreement—SW 72nd and Dartmouth Executed in multiple counterparts as of the Effective Date. TCDA: TOWN CENTER DEVELOPMENT AGENCY, as the duly designated Urban Renewal Agency of the City of Tigard By: Printed Name: MGt✓�l+a L. U)�n,� Its: EXE'1'.l+► 1fC�APPROVED AS AS TO FORM: � a Printed Name: fj Its: 'Jk i c DEVELOPER: DARTMOUTH DEVELOPMENT PARTNERS,an Oregon limited liability company By: Printe N LAV if 2 Its: ` LIP U {00888564;7} 8 SDC Reimbursement Agreement—SW 72"d and Dartmouth EXHIBIT A Depiction of Property {00888564;7} 9 SDC Reimbursement Agreement—SW 72"d and Dartmouth EXHIBIT B Project Schedule Commencement of Construction: September 30, 2020 Substantial Completion (Receipt of TCO): March 30, 2023 {00888564;7} 10 SDC Reimbursement Agreement—SW 72nd and Dartmouth