TCDA Resolution No. 22-05 CITY OF TIGARD, OREGON
TOWN CENTER DEVELOPMENT AGENCY
RESOLUTION NO. 22- O S-
A RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
TOWN CENTER DEVELOPMENT AGENCY TO SIGN A DEVELOPMENT
ASSISTANCE AGREEMENT WITH DIG TIGARD QOZB, LLC FOR THE
7007 SW HAMPTON STREET PROJECT
WHEREAS, Goal 5 of the Tigard Triangle Urban Renewal Plan is to, "Provide financial and
technical assistance to new and existing businesses and housing developments that contribute to the
Area's diversity and vitality and help it transform into a mixed-use and pedestrian-oriented district;"
and
WHEREAS, Objective 3 of Goal 5 of the Tigard Triangle Urban Renewal Plan is to, "Support the
development of mixed-use buildings that provide a variety of housing types and storefront spaces
for a range of community and commercial needs;" and
WHEREAS,the Tigard Triangle Urban Renewal Plan specifically authorizes development and
redevelopment assistance and partnerships as an urban renewal project; and
WHEREAS,DIG Tigard QOZB,LLC have proposed a mixed-use project with green building
features and 55 units,including two affordable to those making 80% or below the Area Median
Income,at the corner of SW Hampton Street and SW 70`''Avenue; and
WHEREAS, the Town Center Advisory Commission found the project meets the criteria for
funding and has recommended approval of$650,000 in development assistance to the TCDA
Board; and
WHEREAS,the Development Assistance Agreement sets out the terms and conditions for the
Agency to make a$650,000 grant to pay for certain System Development Chagres the project will
incur.
NOW,THEREFORE,BE IT RESOLVED, by the Tigard Town Center Development Agency that:
SECTION 1: The Executive Director of the Town Center Development Agency is
authorized to execute the Development Assistance Agreement attached as
Exhibit'A', subject to final legal review.
SECTION 2: The Executive Director of the Town Center Development Agency may
approve editing or similar changes to Exhibit'A'that do not materially alter
the rights or responsibilities of the parties.
SECTION 3: This resolution is effective immediately upon passage.
TCDA Resolution No. 22- 05-
Page
`$Page 1
PASSED: This 15 day of /1,41 v'C'J'Vl!�' ►" 2022.
Chair en' of Tigard
Town ter Development Agency
ATTEST:
Kt
Recorder—City of Tigard
Town Center Development Agency
TCDA Resolution No. 22-0
Page 2
DEVELOPMENT ASSISTANCE AGREEMENT
THIS DEVELOPMENT ASSISTANCE AGREEMENT ("Agreement") is made this
day of 2022 ("Effective Date") by and between the Town Center Development
Agency, an ORS Chapter 457 urban renewal agency ("TCDA") and DIG Tigard QOZB,LLC, an Oregon
limited liability company ("DIG").TCDA and DIG may be referred to in this Agreement jointly as the
"Parties" and individually as a "Party."
RECITALS
A. DIG intends to develop property located at the intersection of SW Hampton Street and SW 70th
Avenue in the Tigard Triangle area ("Property") with a mixed-use building,including 55 apartments
("Project"). Two of the apatu,ients will be income and rent restricted at 80%or below of area
median income (AMI).This affordability requirement will remain in place for 10 years from
certificate of occupancy.
B. TCDA has determined that the Project furthers many of its goals for the Tigard Triangle area
because it will have a strong sustainability component with "Path to Net Zero"
features, provides affordable housing,and will contribute to placemaking and local identity.
C. TCDA has identified funds it will make available to developments like the Project and DIG qualifies
for the receipt of such funds.
D. The Parties desire to enter into the Agreement for TCDA to provide development assistance to
DIG for the development of the Project and, specifically, to assist DIG with the payment of the
City of Tigard's ("City's") system development charges applicable to the Project.
E. The completion of the Project according to the terms of this Agreement is a material inducement to
TCDA to enter into this 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:
AGREEMENT
1. DIG PROJECT DEVELOPMENT
1.1 Subject to events and circumstances outside of DIG's reasonable control, DIG will use
commercially reasonable efforts to begin construction of the Project no later than June 30,
2023.
1.2 This Agreement is not intended to be a contract providing for construction of the Project by
TCDA either directly or through a contractor and DIG is not developing the Project for or on
behalf of TCDA or the City. DIG is solely responsible for selecting a construction contractor
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for the Project. The rights and responsibilities of DIG,the general construction contractor and
any subcontractors, shall be provided for in separate contracts to which TCDA is not a party.
2. TCDA FINANCIAL ASSISTANCE
2.1 Subject to the provisions of this Section 2,TCDA will pay to DIG $650,000,to cover the actual
cost of the system development charges ("SDCs") applicable to the Project ("Financial
Assistance"). For administrative convenience,TCDA will make the payment directly to the
City. Payment will be made when the SDCs are due and payable, as provided in Tigard
Municipal Code 3.24. Notwithstanding the foregoing, the payment made to the City will be
considered financial assistance to DIG for the benefit of the Project.
2.2 In the event the City's SDCs applicable to the Project are less than $650,000,TCDA will pay to
the City only the amount of the SDCs applicable to the Project and TCDA will have no further
financial obligations under this Agreement.
2.3 As a condition to payment,DIG will provide TCDA with evidence of the following:
2.3.1 That at least two of the apartment units in the Project will be subject to one or more
regulatory agreements restricting the units to affordable to those making 80%or below the Area
Median Income, as adjusted for household size, as determined by the State of Oregon Housing
and Community Services Department for a period of at least ten years from certificate of
occupancy.
2.3.2 That,prior to final certificate of occupancy, either (a) Energy Trust of Oregon has
issued a "final check letter,"verifying DIG's eligibility in the Path to Net Zero program and that
DIG's energy usage intensity ("EUI") meets Energy Trust of Oregon's program requirements,
or (b) the Project includes the following features:
o Photovoltaic solar system on the roof;
o Fully electrified building with no natural gas in the building;
o Heat pump water heating systems;
o Double paned or triple paned windows;
o Energy recovery ventilation in apartments; and
o EV charging systems.
In the event the Path to Net Zero program is discontinued or is made unattainable with respect
to the Project in another manner outside of DIG's control (such as by no longer offering it for
multi-family properties),DIG must demonstrate to TCDA that all items under Subsection (b)
have been included in the Project in order to receive the Financial Assistance. DIG's
participation in the Path to Net Zero program,or construction using the identified Project
features above is material inducement for the Financial Assistance.
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2.3.3 That TCDA staff have reviewed and approved DIG's 50%design plan set for the
inclusion of high-quality architecture,landscaping, and pedestrian-accommodating elements
discussed in the Tigard Triangle Development Assistance application review process.
2.4 Subject to Section 1.1 above, this Agreement expires on December 31, 2024, after which time
TCDA has no financial obligation to DIG unless the Parties extend the term of this Agreement
in writing. Parties agree to use commercially reasonable efforts to extend this Agreement if
unforeseen conditions outside of DIG's control delay construction beyond December 31, 2024.
2.5 The Parties anticipate that Washington County will adopt a Commercial Property Assessed
Clean Energy Program ("PACE") ordinance after the Effective Date of this Agreement. In
such event,DIG anticipates utilizing PACE financing for a portion of the Project. Within 30
days after Washington County's determination of PACE eligibility for DIG,DIG will provide
notice of such to the TCDA.
3. REPRESENTATIONS,WARRANTIES,AND COVENANTS OF DIG
To induce TCDA to enter into this Agreement, DIG represents,warrants, and covenants as follows:
3.1 Existence. DIG is a limited liability corporation, duly organized and validly existing under the
laws of the State of Oregon. DIG will keep in force all licenses and permits necessary to the
proper conduct of its ownership and operation of the Project.
3.2 Compliance with Laws. DIG will comply with, or cause the Project to comply with, all laws,
ordinances, statutes,rules,regulations, orders,injunctions, or decrees of any government
agency or instrumentality applicable to DIG, the Project, or the operation thereof,including (a)
all applicable health and safety, environmental,and zoning laws, (b) all federal and state tax
laws, and (c) all restrictions on the use, occupancy or operation of the Project.
3.3 Authority. DIG has full power and authority to conduct all of the activities that are now
conducted by it or proposed to be conducted by it in connection with the Project and as
contemplated by this Agreement, and to execute, deliver, and perform all obligations under this
Agreement;and the person executing this Agreement on behalf of DIG has the legal power,
right and actual authority to bind DIG to the terms and conditions of this Agreement.
3.4 Title. DIG owns and holds good and marketable fee simple title to the Property.
3.5 Development Issues. DIG is aware of no identifiable issue(s) that would preclude
development of the Project or DIG's ability to obtain sufficient financing for the construction
or permanent ownership of the Project.
3.6 Binding Agreement. This Agreement and all documents required to be executed by DIG are
and shall be valid,legally binding obligations of and enforceable against DIG in accordance
with their terms.
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3.7 No Conflict with Other Agreements. 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 DIG is a party.
3.8 Indemnity. DIG shall indemnify and hold TCDA,its directors, officers, employees and agents
harmless from and against any and all liabilities, claims,losses, damages, or expenses (including
attorney fees and title costs and expenses) which any of them may suffer or incur in connection
with (a) the inaccuracy of any of the representations and warranties made herein, (b) any
transaction contemplated by this, and (c) the construction or operation of the Project, except to
the extent such liabilities,claims,losses, damages, or expenses arise solely from the gross
negligence or willful misconduct of TCDA.
3.9 Additional Acts. From time to time, DIG will execute and deliver all such instruments,
provide such additional information, and perform all such other acts as TCDA may reasonably
request to carry out the transactions contemplated by this Agreement.
4. EVENTS OF DEFAULT
The occurrence of any one or more of the following shall be an event of default ("Event of
Default") under this Agreement:
4.1 Failure to Disclose Material Facts. DIG deliberately fails to disclose any fact material to
TCDA's provision of financial assistance, or upon discovery by TCDA of any
misrepresentation by, or on behalf of, or for the benefit DIG.
4.2 Non-Compliance with Governmental Regulations. DIG fails to show evidence of full or
substantial compliance with any lawful, material requirement of any governmental authority
having jurisdiction over the Project or the Property within thirty days after notice in writing of
such requirement is given to DIG by TCDA or,if such compliance cannot be completed within
such thirty (30)-day period through the exercise of reasonable diligence, the failure by DIG to
commence the required compliance within such thirty (30)-day period and thereafter to
continue such compliance with diligence to completion.
4.3 Other Material Breach. DIG otherwise materially breaches any term, covenant, condition,
provision,representation,or warranty of under this Agreement and fails to cure such breach
within thirty (30) days after notice in writing of such breach is given to DIG by TCDA or,if
such breach cannot be cured within such thirty (30)-day period through the exercise of
reasonable diligence, the failure by DIG to commence the required cure within such thirty (30)-
day period and thereafter to continue such cure with diligence to completion.
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4.4 Failure to Pay. TCDA fails to pay the City the SDCs as and when required by Section 2 of
this Agreement.
5. DISPUTE RESOLUTION AND REMEDIES
If a dispute arises under this Agreement,including an Event of Default, the Party claiming the
existence of a dispute or Event of Default will provide written notification of the dispute or Event
of Default to the other Party.A meeting will be held promptly between the Parties, attended by
representatives of the Parties with decision making authority regarding the dispute or Event of
Default to attempt in good faith to negotiate a resolution of the dispute or Event of Default. If the
Parties are not successful in resolving a dispute or Event of Default within twenty-one (21) days, the
Parties may pursue relief in a court of competent jurisdiction. Venue will be in the Washington
County Circuit Court.
6. ASSIGNMENT AND TRANSFER PROVISIONS
6.1 Restrictions on Assignments. Except as provided in this Section 6,DIG may not partially or
wholly transfer DIG's interest in this Agreement without the prior written approval of the
TCDA,which may be withheld in TCDA's reasonable discretion.
6.2 Approved Transfers. Notwithstanding Section 6.1 above, and provided that DIG provides
TCDA with copies of all agreements related to the transfer,TCDA hereby consents to:
6.2.1 An assignment of DIG's rights under this Agreement to any entity in which DIG or an
affiliate thereof owns a direct or indirect interest.
6.2.2 An assignment of DIG's rights under this Agreement to any person or entity upon
substantial completion of Project construction, and subject to DIG's satisfaction of the
conditions in Section 2.3 of this Agreement.
6.2.3 The collateral assignment of rights under this Agreement to any mortgagee. For purposes of
this Section 6.2.2, "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 DIG 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.
7. MISCELLANEOUS
7.1 Counterparts. This Agreement may be executed in any number of counterparts, and any
single counterpart or set of counterparts signed,in either case, by all the parties hereto will
constitute a full and original instrument, but all of which will together constitute one and the
same instrument.
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7.2 Notice. Any notice required or permitted under this Agreement will be in writing and deemed
effective; (1) when actually delivered in person, (2) one business day after deposit with a
commercial courier service for"next day" delivery, (3) two business days after having been
deposited in the United States mail as certified or registered mail, or (4) when transmitted by
facsimile answer back or receipt confirmed), addressed to the parties as follows:
If to DIG:
DIG Tigard QOZB,LLC
333 S. State St Suite V#105
Lake Oswego, OR 97034
l egal(a,digre ale s tate.co m
with a copy to:
Oregon Law Group
1675 SW Marlow Avenue
Suite 404
Portland, OR 97225
notices(aoregonlawgroup.com
If to TCDA:
Town Center Development Agency of the City of Tigard
13125 SW Hall Blvd
Tigard, Oregon 97223
with a copy to:
City Attorney
City of Tigard
13125 SW Hall Blvd
Tigard, Oregon 97223
7.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit
of the Parties and their respective permitted successors and assigns.
7.4 Governing Law. This Agreement will be governed by and construed under Oregon law.
7.5 Modification; Prior Agreements; Headings.This Agreement may not be modified or
amended except by an instrument in writing signed by the Parties.This Agreement reflects and
sets forth the entire agreement and understanding of the Parties with respect to the subject
matter hereof, and supersedes all prior agreements and understandings relating to such subject
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matter. The headings in this Agreement are for the purpose of reference only and will not limit
or otherwise affect any of the terms hereof.
7.6 Validity; Severability. If any provision of this Agreement is held to be invalid, such event will
not affect,in any respect whatsoever, the validity of the remainder of this Agreement, and the
remainder will be construed without the invalid provision so as to carry out the intent of the
parties to the extent possible without the invalid provision.
7.7 Time of Essence. Time is of the essence of this Agreement.
7.8 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 will be of any force or effect unless in writing,will be construed to be a continuing
waiver, and will be considered a waiver of any other rights of the Party making the waiver.
7.9 No Partnership. Nothing contained in this Agreement or any acts of the Parties hereby will 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.
7.10 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.
7.11 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 may have any right to enforce any term of
this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first above written.
Executed in multiple counterparts as of the day and year above written.
TOWN CENTER DEVELOPMENT AGENCY,
an ORS 457 Urban Renewal Agency,
By: Steve Rymer, Executive Director of the Town Center Development Agency of the City of
Tigard
Signed:
APPROVED AS TO FORM:
By:
Shelby Rihala, City Attorney
DIG Tigard QOZB, LLC,
an Oregon limited liability company
By: DIG Tigard Partners,LLC,
an Oregon limited liability company,
Its Manager
By:
Name: Brenner Daniels
Tide: Co-Manager
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