George N. Diamond, LLC - Development Feasibility Agreement ~ i
Development
Feasibility Agreement
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This Agreement is entered into by and among te City Center Development Agency of
the City of Tigard, an ORS Chapter 457 Urban Ren wal Agency ("CCDA") and George N
Diamond LLC, an Oregon limited liability company i nd Capstone Partners LLC, a limited
liability company (collectively"Developer")
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RECITALS
1. CCDA is in the process of obtaining therealproperty described in Exhibit"A"
from the City of Tigard in furtherance of the City Center Urban Renewal Plan (Ordinance No.
05-17) to encourage private development, cure blight and enhance economic development
opportunities (the'Site');
2. CCDA and Developer have engaged in discussions regarding entering into a
Development and Disposition Agreement ("DDA") for mixed-use development of the Site (the
"Project") and have reached the stage where further'' and more detailed pre-development
feasibility analysis and Project pro forma is necessary (the "Project Pro Forma"); and
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3. The parties have determined that each Will benefit from the product of further
feasibility analysis and, therefore, should share in the cast as provided for herein.
follows:Now, therefore, in consideration of the mutual cPvenants herein, the Parties agree as
1. The Project is contemplated to be a multi-family residential/commercial mixed
use development that will include open space and active ground floor uses designed. to
achieve all of the public goals desired for the Site, actlas a catalyst for development in the
UR Area, and fully capitalize the public investments.
2. Development is contemplated to include approximately 129 multi-family
residential units in two buildings. Building 2 of the Project shall be designed and
constructed with the intention of qualifying as a Vertical Housing Development Project
pursuant to ORS 285C.450 to 285C.480 and applicable administrative rules.
3. The Project's on-site parking ratio is contemplated to be approximately 1
parking stall per unit and is to be located on a surface lot between the buildings, on the
south end of the parcel, and in a "tuck under" portioh of the ground floor of Building 2.
Developer will in good faith consider including additional "tuck under" parking where
Developer determines appropriate in its business judgment.
4. A new public street will extend through the Site easterly from Ash Avenue
(parallel to Burnham Street) between the building. The Conceptual Design dated
December 10, 2014 for the Project shall be a guide but I s not binding.
5. Within 14 days of the effective date df this Agreement, Developer shall
prepare and share with CCDA a detailed Project Pro Forma to be used as the basis for
negotiating the financial terms of the proposed DDA, assuming a 7% return on cost,
including, but not limited to, hard and soft costs, closing and financing costs, operating
capital deficit through the initial break even operation$ and reasonable contingencies. It
shall reflect an assumption that the Project will obtain a Vertical Housing partial tax
exemption. The Project Pro Forma shall be based on refined design and construction
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schematics that address density, design,
quality ofmaterials and construction and other
necessary components at a level of detail sufficient to Ilsupport the Project Pro Forma.
6. The parties shall confer to evaluate and refine this information as necessary
to be used in good faith efforts to negotiate a DDA. Each party, however, retains complete
discretion as to whether entering into such an agree ent is in its interest and, in the case
of CCDA, the public interest.
7. CCDA shall reimburse Developer for 504 of the cost of preparing the Project
design and construction plans and any third party costs incurred by Developer with respect
to the Project, but not for the Project Pro Forma or for any legal costs, if the parties do not
execute a DDA within 90 days of the effective date of this Agreement. In no event shall
reimbursement exceed $40,000. Developer shall provide detailed documentation of such
costs for review and approval by CCDA, which shall not unreasonably be withheld,
conditioned or delayed.
8. In consideration for such reimbursement, Developer shall provide CCDA with
a copy of all third party prepared studies, investigations, designs and other information for
which Developer receives partial reimbursement, other than the Project Pro Forma, together
with an assignment, license or other authorization granting CCDA unrestricted rights to use
such documents for any purpose in connection with the development of the Site. Any use
CCDA makes of the materials after receipt shall be aCCCDA's risk and such materials shall
be provided without any representation or warranty whatsoever by Developer.
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9. If the parties enter into a DDA within 90 days of the effective date of this
Agreement, reimbursement, if any, shall be as provided in the DDA.
10. Each party agrees to keep as confidential any document or information
marked by the other party as confidential, including the reason the document is considered
confidential. This shall not preclude a party from sharin,g such information with any partner,
lender, consultant, employee or agent when reasonably necessary in the normal course of
carrying out the obligations of the party under this Ag(reement. In the event that CCDA is
served with a request for the production of information)marked confidential by Developer or
deemed so by the CCDA, the CCDA shall inform Deve;oper and provide Developer at least
five (5) days to contest disclosure prior to disclosure: However, the parties acknowledge
that, as a public entity, CCDA must and will comply with ORS 192.410, et. seq.
11. A party may pursue any remedy provided by law to enforce the terms of this
Agreement provided the party has provided at least 15Ildays' written notice and opportunity
to cure to the other party or parties.
12. This Agreement shall be effective on the ate last executed. Unless otherwise
agreed, this Agreement shall terminate 120 days from execution.
13. Time is of the essence in the performance of and adherence to each and
every provision of this Agreement.
14. Nothing contained in this Agreement or any acts of the p arties hereby
shall be deemed or construed by the parties, or 4y any third person, to create the
relationship of principal and agent, or of partnership, or of joint venture, or any
association between CCDA and Developer.
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15. Waiver by any party of strict performance of any provision of this
Agreement shall not be deemed a waiver of or prejudice a party's right to require strict
performance of the same or any other provision in ,the future. A claimed waiver must
be in writing and signed by the party granting a waiver. A waiver of one provision of
this Agreement shall be a waiver of only that provision. A waiver of a provision in one
instance shall be a waiver only for that instance, unless the waiver explicitly waives that
provision for all instances.
16. Any covenant or condition set foirth in this Agreement, the full
performance of which is not specifically required prior to the expiration or earlier
termination but which by its terms is to survive the termination of this Agreement
(including, without limitation, the payment of the reimbursement amount payable to
Developer hereunder), shall survive the expiration or earlier termination of this
Agreement and shall remain fully enforceable thereafter.
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17. If any provision of this Agreement is held to be invalid or unenforceable,
the remainder of this Agreement, and the application of such provision to persons or
circumstances other than those to which it is held invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law. If a material ,provision of this Agreement is held
invalid or unenforceable such that a party does noir receive the benefit of its bargain,
then the other parties shall renegotiate in good frith terms and provisions that will
effectuate the spirit and intent of the parties' agreement herein.
18. 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.
19. This Agreement may be modified only by;a writing signed by the parties.
20. If a suit, action, or other proceeding of any nature whatsoever (including
any proceeding under the U. S. Bankruptcy Code) i� instituted in connection with any
controversy arising out of this Agreement or to interpret or enforce any rights or
obligations hereunder, the prevailing party shall fie entitled to recover its attorney,
paralegal, accountant, and other expert fees and al) other fees, costs, and expenses
actually incurred and reasonably necessary, as determined by the court at trial or on any
appeal or review, in addition to all other amounts provided by law.
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IN WITNESS WHEREOF, the Parties have entered into this Agreeryient as of the last date
this Agreement is signed by the parties befow (the"effective gate" of this Agreement,
CCDA: CODA OF TI ARD
PnWed Name:
APProved as to fo,,--1
CCDA 4Alttoe
By
Its:
Dev�ecwpel GE-ORGE N- DI MOW LLC, a r ri r Ye liability company
By:
Priated Name-.—L—
Its:
CAPSTONE DAR TNERSAI�El-ai4-0)i07C
-,cn limited liabVity company
By: Sapient
aX3
r O-LCaqporatlon, Member
By;
Chtll�iWKe,J. Neisor,
By: Triangie Develop meat CotnPal!Y, 81'Oregon corporatbn, Member
Jeffrey N1, 'S�tkett, Presiderit
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EXHIBIT `A'
DEVELOPMENT FEASIBILIT AGREEMENT
The Site consists of three(3)parcels in the City of Tigard Washington County, Oregon:
2S 102AD02800, consisting of.16 acres (m/1) at 9020 SW Burnham Street.
2S l 02AD02900, consisting of.19 acres(m/1) at 12270 SW Ash Ave.
2S 102AD03000,consisting of 3.26 acres(m/1)at 12800 S*Ash Ave.
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„ 2S 1 02AD
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3a�P+ •i x M a,a ' ps 'ae AO A PLOT DATE:September 19,2012
FORASSESSMENTPURPOSES
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THIS MAP IS MADE SOLELY FOR THE PURPOSE OF ASSISTING IN LOCATING SAID PREMISES,AND THE COMPANY ASSUMES NO LIABILITY FOR