Dartmouth Townhomes ~ SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement") is entered into by and between the
City of Tigard, a State of Oregon municipal corporation ("City"), and Dartmouth Townhomes,
LLC, an Oregon domestic limited liability company ("Dartmouth") (referred to collectively
herein as the "Settling Parties").
RECITALS
WHEREAS, the City has determined it has an immediate need to improve the northwest
side of SW Dartmouth Street between 691h and 70th Avenues as part of the Tigard Triangle Local
Improvement District No. 1;
WHEREAS, the City is in need of a portion of the Dartmouth's property on SW
Dartmouth Street for this public use, the legal description of which is attached hereto as
Exhibit A ("Property");
WHEREAS, the City filed a lawsuit against Dartmouth in Washington County Circuit
Court, commonly known as City of Tigard v. Dartmouth Townhomes, LLC,Washington County
Case No. C090279CV ("Lawsuit") to condemn the Property; and,
WHEREAS, the City and Dartmouth have reached a settlement of all issues related to
the Lawsuit and desire to end further litigation of the Lawsuit.
AGREEMENT
NOW THEREFORE, in consideration of the terms, covenants, and conditions expressed
in this Agreement to be kept and performed by the parties to this Agreement, and for other good
and valuable consideration, the receipt, adequacy, and sufficiency of which is hereby
acknowledged, and based on the foregoing recitals which each party acknowledges to be true,
and which are hereby incorporated into this Agreement, the parties mutually agree as follows:
1. Settlement. The City agrees to pay Dartmouth Twenty-Two Thousand One-
Hundred and 00/100 Dollars ($22,100.00) ("Settlement Amount"). The check shall be made
payable to Schwabe, Williamson &Wyatt in Trust for Dartmouth Townhomes, LLC and shall be
received at Schwabe, Williamson & Wyatt at PacWest Center, 1211 SW 5th Ave., Suite 1900,
Portland, OR 97204. Dartmouth agrees to execute a dedication deed transferring ownership of
the Property to the City. The dedication deed shall be delivered to Jordan Schrader Ramis PC's
principal place of business at 2 Centerpointe Drive, 6th Floor, Lake Oswego, OR 97035.
2. Release of Claims. The Settling Parties release each other and their respective
officers, directors, shareholders and employees, members, representatives, constituents, agents,
laborers, heirs and assigns, and predecessors in interest, from any claims they have or may have
arising out of the City's condemnation of Dartmouth's property.
50014-36794.0/7161207 2.doc\DRF/4/9/2009
3. Dismissal of Lawsuit. Upon receipt of the dedication deed in accordance with
paragraph 1 above, the City will execute and file a General Judgment of Dismissal in the
Lawsuit. Said dismissal is to be with prejudice and without fees or costs to any party.
4. No Third-Party Beneficiaries. The Settling Parties intend that there be no
third-party beneficiaries to this Agreement.
5. Attorney Fees and other Costs and Expenses. The Settling Parties are each
responsible for their own costs and attorney fees incurred in the preparation of this Agreement.
In the event of a dispute arising out of the terms of this Agreement, or in an action to enforce the
terms of this Agreement, the prevailing party shall be entitled to an award of its reasonable
attorney fees and other costs and expenses incurred in that action or alternative dispute resolution
process.
6. Understanding of Terms. The Settling Parties agree that they have read and
understood and voluntarily accept the terms of this Agreement. The Settling Parties further
agree that this Agreement shall be construed as broadly as possible to encompass the Settling
Parties' mutual intent.
7. Additional Documentation; Time of the Essence. Each of the Settling Parties
agrees that it will execute any other documents that become reasonably necessary to effectuate
this Agreement, and further agrees that time is of the essence in executing this Agreement and
any other documents that become reasonably necessary to effectuate the same.
8. Integration. The terms and conditions contained in this Agreement comprise the
Settling Parties' entire understanding concerning the subject matter of this Agreement. Such
terms and conditions supersede all prior and/or contemporaneous oral and/or written
representations, discussions, negotiations, statements, promises, understandings, and agreements
concerning such subject matter.
9. Construction of Agreement. Because the Settling Parties have mutually
participated in the preparation of this Agreement, the rule of construction that contracts shall be
construed against the drafter shall not apply to the interpretation of this Agreement.
10. Signature Authority. Each of the Settling Parties and the individual signatories
executing this Agreement hereby represent and warrant that they have full authority to execute
this Agreement on their own behalf and on behalf of the entity or entities that they claim below
to represent, and that they sign as their free and voluntary act and deed.
11. Counterparts. This Agreement may be executed in multiple counterparts. Upon
execution, this Agreement shall become enforceable and binding upon each of the Settling
Parties even if it is signed in counterparts. The Settling Parties acknowledge that this Agreement
may be executed via facsimile and e-mail (scanned signature), and that an Agreement bearing a
facsimile or scanned signature shall be enforceable as if it was bearing an original signature.
12. Representation. The Settling Parties hereby warrant and represent that at all
times they have been represented by counsel or have had the opportunity to discuss this
Agreement with an attorney prior to affixing their respective signatures hereto. By executing
50014-36794.017161207 2.doc\DRF/4/9/2009
this Agreement, the Settling Parties warrant and represent that they have had an adequate amount
of time to properly analyze and consider all of the issues related to the terms and conditions
contained in this Agreement, and that they are entering into this Agreement of their own free will
and choice and not because of any statements, representations, or warranties made by the
opposing party or that party's counsel.
WHEREFORE, the Settling Parties agree to all the terms and conditions of this
Agreement by signing in their respective locations below.
City of Tigard, a State of Oregon Municipal Dartmouth Townhomes, LLC, an Oregon
Corporation domestic limited liability company
By: By:
Name: Name:
Its: Its:
DATED: , 2009. DATED: 12009.
50014-36794.017 1612072 doc\DRF/4/9/2009
EXHIBIT"A"
LEGAL DESCRIPTION
FOR
ADDITIONAL RIGHT-OF=WAY DEDICATION
SW DARTMOUTH STREET
A tract of land for right-of-way dedication purposes being a portion of Lots 17 thru 18 and Lot b
Block 11 WEST PORTLAND HEIGHTS,a duly recorded subdivision in the Southeast'/.of
Section 36,Township 1 South,Range 1 West of the Willamette Meridian,City of Tigard,
Washington County,State of Oregon,also described as Reserve of Right of Way in Document No.
2006-011330 of the Washington County Deed Records,more particularly described as follows:
Commencing at the Northwest comer of said Lot 17,said convex being 27.57 feet Easterly from the
West right-of-way line of SW 70`h Avenue; thence along the North line of said Lot 17 S 890 58' 10"
E a distance of 2.43 feet; thence parallel with and 30.00 feet East of the West line of SW 70"'
Avenue S 01'11' 56"East a distance of 78.33 feet to The True Point of Beginning; thence
continuing S 010 11'56"E a distance of 11.00 feet to the beginning of a tangent curve to the to the
left; thence along said curve to the left with a radius of 35.00 feet,a central angle of 89°58'33"
(a chord bears S 46° 11' 12"E,49.49 feet)and a length of 54.96 feet to a point of tangency; thence
N 88°49'31"E, along the northerly right of way of SW Durham Street 36.00 feet from center line
(when measured at right angles),a distance of 137.67 feet to a point of curve of a curve to the left;
thence along said curve to the left with a radius of 404.47,a central angle of 01°41'45" (a chord
bears N 87°58'39"E, 11.97 feet)and a length of 11.97 feet to the beginning of a tangent curve to
the left; thence along said curve to the left with a radius of 35.00 feet,a central angle of 87°09'49"
(a chord bears N43° 32' 52"E,48.26 feet)and a length of 53.25 feet to the west line of SW 69`h
Avenue; thence along said west line N 00°02'03"W a distance of 11.01 feet to the beginning of a
non-tangent curve to the tight; thence along said curve to the right with a radius of 35.00 feet,a
central angle of 87° 04'35" (a chord which bears S 43°30' 15"W,48.22 feet)and a length of 53.19
feet to the point of curve of a curve to the right and a point 47.00 feet from the center line of SW
Dartmouth Street when measured at right angles; thence along said curve to the tight with a radius
of 393.47,a central angle of 01°46'59"(a chord which bears S 87-56'02"W, 12.24 feet)and a
length of 12.24 feet to a point of tangency; thence.S 88°49'31"W,parallel with and 47.00 feet
from the center line of SW Dartmouth Street,a distance of 137.68 feet to a point of curve of a curve
to the right; thence along said curve to the right with a radius of 35.00 feet,a central angle of 89°
58'33" (a chord which bears N 46° 11' 12"W,49.49 feet) and a length of 54.96 feet to the True
point of beginning
Containing 2399 square feet.
RIGHT OF WAY I EDCATION
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SW DARTMOUTH STREET X2399 SQUARE FEET