TC/EIL Tigard, LLC February 7,2017
Hunziker Infrastructure Development Agreement
This Hunziker Infrastructure Development Agreement("Agreement")is entered into by and between the
City of Tigard, a municipal corporation("City") and TC/EIL Tigard, LLC, a Delaware limited liability
company("Developer").
WHEREAS:
1. The parties agree that the area known as the Hunziker Industrial Core has the potential for
improved value through substantial private sector investment that will promote increased economic
activity and employment. This potential cannot be realized without a significant public and private
investment in public infrastructure. The City has been working for more than two years on a strategy to
improve public infrastructure in the Hunziker Industrial Core, and has created a plan to develop road,
water and sewer infrastructure within the Hunziker Industrial Core. This plan is referred to as the
"Hunziker Infrastructure Project".
2. City has determined that it is in the public interest to use public funds, including City funds
and state and federal economic development grants,to provide partial funding for the public
infrastructure necessary to spur private sector investment of this area.
3. City has determined that completion of the projects described below is necessary to
accomplish the City's objectives consistent with the City of Tigard's Capital Improvement Plan.
Three components of the Hunziker Infrastructure Project, are described below:
Wall Street Improvements CIP 95047("Wall Street Project")
Wall Street will be constructed from Hunziker Road to the existing Portland&Western Railroad
"heavy tracks"to the southeast totaling 2,040 lineal feet of new public road. The paved width of the
new road will be 46 feet with curb and gutter, 5 foot sidewalks on each side,bike lanes and storm
water planter areas for water quality treatment within a 70-foot right-of-way transitioning to a paved
width of 36 feet with curb and gutter, 5 foot sidewalks on one side, bike lanes and storm water
planter areas for water quality treatment within a 50 foot right-of-way as the road approaches the
heavy tracks. Within the new road alignment, an 8"sewer, 12"waterline and a 15"storm line will
be placed to serve the adjacent properties. The Wall Street Project alignment, shown on Exhibit B,
includes a looped water line connection to SW Tech Center Drive(3,475 linear feet).
Wall Street Extension Project
This is a planned future extension of Wall Street that will connect to SW Tech Center Drive. This is
not part of this Agreement.
East Tigard Sewer Replacement CIP 93013 ("East Tigard Sewer Project")
This project is in the Sanitary Sewer Master Plan and involves increasing the capacity of an
existing sanitary sewer line(serving the area north of Hunziker Street)to prevent overflows and
to improve the access for routine maintenance. It will also provide sanitary sewer service for a
portion of the undeveloped adjacent parcel (the Fields property). Clean Water Services (CWS) is
funding the majority of this project.
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4. City has obtained an appropriation from the State of Oregon Lottery Revenue Bond Capital
Construction Fund in the amount of$1,500,000(the"State Grant") to support"creating or improving
public infrastructure in support of the Hun7iker Infrastructure Project"which includes the Wall Street
Project (part of this development agreement) as well as the Wall Street Extension project(not included
as part of this development agreement).
5. City has been awarded a grant from the U.S. Department of Commerce, Economic
Development Administration(the"Federal Grant")for$2,080,000 in matching funds to fund a portion
of the final design, permitting and construction of the Wall Street Project.
6. Developer has the right to purchase property adjacent to the property on which the Wall Street
Project will be constructed as shown on Exhibit A("Developer's Property") from the Fred W. Fields
Revocable Living Trust(the"Fields Trust")pursuant to a purchase and sale agreement between the
Fields Trust and Developer. Developer intends to acquire Developer's Property and the Fields Trust has
dedicated right of way for the Wall Street Project as further described below. Also,in lieu of
constructing improvements for a 3/4 street along the western and southern boundaries of Developer's
Property(fronting Wall Street)as typically would be required as a condition of approval of development
of Developer's Property by the City, Developer is willing to contribute to the Wall Street Project the
estimated costs Developer would otherwise spend on the 3/4 street improvements.
7. City desires to complete the Hunziker Infrastructure Project and City and Developer desire to
document their respective rights and obligations related to the Wall Street Project.
Now, therefore, in consideration of the terms, conditions and covenants herein, the receipt and adequacy
of which are confirmed, the parties AGREE as follows:
Article 1. City Responsibilities and Obligations:
1.1 Project. Unless this Agreement is terminated per Article 4 of this Agreement, or per Developer's
failure to deposit funds as provided in Section 3.3, City agrees to (a)design, obtain permits for, and
construct the Wall Street Project, in accordance with applicable city or special district standards,
(b) acquire right of way as described below, and (c)provide utilities and obtain easements all as more
fully described below. The Wall Street Project and City's responsibilities include but are not necessarily
limited to the following:
1.1.1 City will acquire the necessary right of way(or terminate access easements)and
obtain temporary construction easements related to the following properties:
1.1.1.1 Approximately 107,830 square feet of right of way along the western and
southern boundaries of Developer's Property as described in Exhibit E. A
portion of the right of way has been conveyed by the Fields Trust without
compensation. This portion is the portion that would typically be required to
be dedicated by the City for 3/4 street improvements.
1.1.1.2 In order to minimize the impact of the Wall Street Project on properties
adjacent to it on the west, Developer caused the Fields Trust to dedicate
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additional property.This additional right of way dedication from
Developer's Property(the easternmost 15 feet of the right of way area
including approximately 30,600 square feet(the"Developer's Additional
Right of Way") shall be compensated by the City granting to Developer
Transportation Development Tax credits("TDT Credits") in the amount
equal to the appraised fair market value of the Developer's Additional Right
of Way. See Exhibit D2.The TDT credits shall be transferable by Developer
as provided in the TDT ordinance. Additional TDT credits will be granted to
Developer for its cash contribution to the Wall Street Project per Section
3.2.4 below.
1.1.1.3 Approximately 25,000 square feet of right of way along the eastern
boundary of the property owned by Wall Street Industrial (the"Vial
Property")and the easements needed for the construction,maintenance,use,
repair and replacement of a sanitary sewer line, related storm sewer and
stormwater facilities as depicted on Exhibit D1.
1.1.1.4 All rights of way and easements necessary to construct the East Tigard
Sewer Project.
1.1.2 City will design, and produce the 60% Plans, 90% Plans and final drawings for,the
Wall Street Project, as described in Section 1.2 below. City will conduct all necessary
due diligence, obtain all permits and bids,provide all project management, and
construct the Wall Street Project.
1.2. Plans. Preliminary 30%plans for the Wall Street Project were prepared by Murray, Smith&
Associates, Inc., and are shown on sheets C 1, C 10&C 19; C2, C 11 &C20; C3, C 12 &C21; C4,C 13 &
C22; C5, C 14&C23, C9, C 18 &C27 of the August 2016,Rev.2 set of plans(the"30%Plans") and
were reviewed with edits recommended by City and Developer. Developer and City accept the 30°o
Plans as revised in August, 2016. The costs of the preparation of the Plans are part of Wall Street Project
Costs, as defined below. City will deliver to Developer proposed 60%Plans, 90%Plans and final
construction drawings for the Wall Street Project, all of which shall be as consistent as reasonably
possible with the 30%Plans. City will not finalize any of such plans without first giving Developer a
reasonable opportunity to review and comment on the plans and the City shall incorporate Developer's
comments into each stage of the plans for the Wall Street Project if and to the extent reasonably
practical. Developer must provide to City Developer's comments on any plans within ten(10)business
days of City's request therefor.
1.3. Estimated Cost and Schedule. Attached as Exhibit C is the anticipated cost and schedule for design,
permitting,bidding, and construction of the Wall Street Project. City will use best efforts to complete
the Wall Street Project in accordance with each milestone on the schedule set forth in Exhibit C.
1.4. Possession. City shall endeavor to have possession of all necessary rights of way and easements for
the Wall Street Project on or about March 15, 2017. To the extent possible,the City shall have
possession of all necessary rights of way and easements for the East Tigard Sewer Project by the same
date.
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1.5. Management. City shall manage the entire Wall Street Project consistent with City's standards and
normal and customary engineering and construction management practices. Unless prompt action is
required to avoid delay costs, City shall confer with Developer regarding any requests for change orders,
extra work or other unforeseen construction issues that exceed 90%of contingency for the Wall Street
Project.City shall be permitted to charge a fixed management fee for the Project not to exceed
$114,000,which amount will be included in the Wall Street Project Budget described in Article 3,
1.6. Developer Access. Developer intends to construct, and potentially occupy, improvements on
Developer's Property prior to completion of the Wall Street Project. City shall maintain reasonable
access to Developer's Property during construction and not unduly restrict such access. It is understood,
however,that short delays or restrictions in the normal course of constructing public improvements may
occur as long as one lane of traffic always provides access to Developer's Property over Wall Street
from SW Hunziker Street. City shall use its best efforts to coordinate access issues with Developer.
City's obligations in this Section 1.6 are contingent on Developer providing City with a description of
its proposed improvements,construction schedule and other information sufficient to permit City to
address access in the 60%Plans. Any changes to the 60% Plans necessitated by changes in Developer's
plans for Developer's Property shall be at Developer's sole expense. City shall not delay issuance of a
certificate of occupancy for improvements on Developer's Property solely due to delay in completion of
the Wall Street Project.
1.7 Wall Street Extension Project. City shall seek to fund the Wall Street Extension Project from the
owner and/or the developer of the property adjacent to the Wall Street Extension, along with any grants
or City funds. Nothing in this Agreement authorizes City to seek additional funds from the Developer
for the Wall Street Extension or obligates Developer to contribute funding for the Wall Street Extension,
Article 2. Developer Responsibilities and Obligations:
2.1. Payments. Developer will make the payments related to the Wall Street Project as described in
Article 3.
2.2.Grant Compliance. Matching funds for this public infrastructure from the federal grant will require
follow up reporting on factors such as employment level,amount of private sector investment, and
tenant mix. While the Developer owns the property fronting Wall Street it will comply with relevant
reporting requirements made by the City as a requirement of the use of federal funds from the Federal
Grant,but only as to the portion of Developer's Property owned by Developer and only during the
period of time of Developer's ownership of Developer's Property.
2.3. Dedication of right of way. Developer has caused Fields Trust to dedicate at no cost to the City or
the Wall Street Project,right of way representing the area needed for a 3/4 street improvement along the
Wall Street frontage, including any temporary construction easements as documented in Exhibit D2.
Notwithstanding any other provision,this dedication shall be irrevocable. This dedication of right of
way pursuant to this Agreement shall satisfy Developer's obligations for right-of-way for the Wall Street
Project.
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2.4. Sewer Project. Developer will have no obligation under this Agreement for any contribution of
funds to the East Tigard Sewer Project or to participate in the Wall Street Extension to SW Tech Center
Drive.
2.5 LID Consent and Waiver. Developer shall execute with this Agreement the irrevocable and
unconditional waiver of the right to remonstrate against the formation of a local improvement district
and assessment, in the form attached as Exhibit F, ("Consent and Waiver") in an amount sufficient to
reimburse City for the costs associated with completion of the 3/ street and utilities improvements to
Developer's frontage including but not limited to design, engineering and construction,plus financing
costs and LID formation expenses. Developer hereby acknowledges that this waiver is in consideration
of City constructing the Y, street frontage improvements described in this Agreement using City funds,
thereby relieving Developer of the obligation to do so at the time of development of Developer's
Property. The Waiver and Consent shall also stipulate that it is valid and binding for five(5) years from
the date of execution and that Developer agrees that the full amount of the assessment may be financed
for no more than five(5) from the date of assessment or the date a building permit is issued for any
portion of the Developer's Property,whichever first occurs.The Waiver and Consent shall be effective
upon the date of execution by Developer. This Section 2.5 and the Waiver and Consent shall survive
termination of this Agreement,may be recorded in the deed records of Washington County, at any time
after Developer takes ownership of Developer's Property, shall run with the land, and shall bind the
successors and assigns of Developer.
Article 3. Wall Street Project Funding and Plan Review:
3.1. General. The"Wall Street Project Budget"and the elements of the Wall Street Project Costs are
summarized in Exhibit C. The"Wall Street Project Costs"are all costs, fees, and expenses (hard and
soft costs) expended by City to complete the Wall Street Project, and are in the Wall Street Project
Budget, as it may be amended. Soft costs include the fees of architects, engineers and consultants,but
do not include attorneys' fees, interest, or financing costs.
3.2. Sources and Uses. The overall funding of the Wall Street Project is anticipated to come from the
following sources and to be used as follows:
3.2.1 The State Grant- Up to$1,020,000 of the total $1,500,000.These funds are available only
for expenses that may be capitalized, including right of way acquisition, design, and construction. The
parties understand and agree that$480,000 of the State Grant funds are reserved by the City of Tigard
for the construction costs of the Wall Street Extension Project(not a part of this development
agreement). The parties further understand and agree that, if the Wall Street Project comes in under
budget, State Grant funds may be reallocated by the City of Tigard to other projects that are part of the
Hunziker Infrastructure Project.
3.2.2 The Federal Grant—Estimated$2,083,000(subject to the matching provision contained in
the Federal Grant).
3.2.3 The City has appropriated the funds in the amount of$245,845 required to construct the
East Tigard Sewer Project(in excess of the$1,437,000 in funds to be provided by Clean Water
Services).
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3.2.4 Developer—$1,650,000,plus any additional amount required pursuant to this Agreement
(to be used only for design,bidding, construction and project management of the Wall Street Project).
("Developer's Contribution"). Developer shall make payments according to the following schedule:
1. $77,000 within 10 business days after the date that the City issues a notice to
proceed to its design consultant to begin preparation of 60%plans,
2. $77,000 within 10 business days of Developer's receipt of 60%plans,revised
budget, and revised schedule.
3. $38,500 within 10 business days of Developer's receipt of 90%plans,revised
budget, revised schedule, and engineer's estimate of construction cost.
4. $1,457,500,plus any additional contribution established pursuant to Section 3.5 for
the Wall Street Project prior to award of the construction contract. Notwithstanding any other
provision of this Agreement,this deposit is a condition precedent to City's obligation to award
the construction contract. Developer's Contribution shall be deposited into a segregated account
to be used exclusively for the Wall Street Project.
3.3 Failure to Pay. If Developer chooses not to make any one of the first three payments above, it shall
notify the City on or before the due date for each payment. Upon receipt of such notice, this Agreement
shall terminate. All payments already made will belong to the City. Failure of City to receive the notice
on the due date shall constitute a waiver of the right to terminate as to that payment and the payment
shall be made by Developer. This shall not,however, waive Developer's option not to make a
subsequent payment.
3.3.1 If the Developer is the owner of the Developer's Property on the date of termination under
this Section 3.3, the provisions of Section 4.2 shall apply.
3.3.2 If Developer is not the owner of the Developer's Property on the date of termination under
this Section 3.3,the provisions of Section 4.2 shall apply, and, if City elects to proceed with the Wall
Street Project, as provided in Section 4.2.1,City may record and enforce the Consent and Waiver at such
time as Developer obtains ownership of Developer's Property.
3.4 Funds held in Trust. All funds received by City from Developer pursuant to this Agreement,shall be
placed in a trust and agency account and shall be expended only for the actual cost of design,bidding,
project management and construction of the Wall Street Project. Within 60 days of substantial
completion of the Wall Street Project,City shall provide Developer with reasonable documentation of
all expenditures. City shall return to Developer the portion of Developer's Contribution not expended
for the Wall Street Project, if any, within 30 days of final payment to City's general contractor.
3.5 Plan Review; Construction Bidding and Cost Adjustment.
3.5.1 If, upon completion of the 600/6 Plans and associated engineer's cost estimate,the Wall
Street Project Costs are expected to exceed the Wall Street Project Budget set forth in Exhibit C, the
parties shall revise the scope of the Wall Street Project and Wall Street Project Budget and the summary
of the sources of funding described above.
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3.5.2 If,upon completion of the 90% Plans and associated engineer's cost estimate,the Wall
Street Project Costs are expected to exceed the previously agreed-upon Wall Street Project Budget,the
Wall Street Project Costs overrun shall be handled as follows:
3.5.2.1 First, the City may choose to reduce the scope of the Wall Street Project. City will not
finalize any such plans without first giving Developer a reasonable opportunity to review and comment
on the plans and the City shall incorporate Developer's comments into each stage of the plans. In no
event shall the City decrease the length of Wall Street so that it no longer extends to a point that is 2,020
feet south of the intersection of SW Wall Street and SW Hunziker Street.
3.5.2.2 Second, the summary of sources of funding shall be updated to incorporate the increase
in the City and Developer's respective contributions in proportion to their respective funding
commitments, to cover the increased funding obligation.
Developer shall be responsible for 55% of agreed upon increased Wall Street Project Costs, and
City shall be responsible for 45% of agreed upon increased Wall Street Project Costs. In no event shall
City be required to appropriate or spend funds from sources other than the state and federal funding
referenced in this Agreement. Funding for increases for party-specific design increases shall be
proportioned as set forth in Section 3.8. (This expense may be eligible for federal match if grant
matching maximum has yet to be reached for eligible Wall Street Project Costs.)
3.5.2.3 The Wall Street Project Budget shall be updated accordingly.
3.5.3 The City shall then proceed with final design of the Wall Street Project and bidding. If the
final design costs exceed the previously agreed-upon Wall Street Project Budget, the cost overrun shall
be handled as set forth in Section 3.5.2.
3.5.4 If,upon receipt of the construction bids,the Wall Street Project Costs are expected to
exceed the previously agreed-upon Wall Street Project Budget, the overrun shall be handled as required
for the 90%Plans,as set forth in Section 3.5.2. Upon agreement as to how to handle the anticipated
overrun, the City shall either:
a. Award the construction contract with any modifications if City determines that re-
bidding is not required by law,or
b. Re-bid the Project as modified.
3.5.5 Nothing in this Agreement shall obligate the City Council to award the construction
contract if the Wall Street Project construction cost is expected to exceed$3,502,329.
If construction cost is expected to exceed this amount, either party may terminate this Agreement
within 10 days of the City's opening of the initial construction bids or if applicable, a single rebid of a
modified project. If the City elects to terminate under this Section 3.5.5,the provisions of Section 4.2.2
will apply. If the Developer elects to terminate under this Section 3.5.5, the provisions of Section 4.2
will apply.
3.6 Construction Cost Overruns. During construction,City shall confer with Developer as required
under Section 1.5. If, during construction of the Wall Street Project, actual Project Costs exceed the final
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Wall Street Project Budget,City and Developer shall increase their contributions in proportion to their
respective previously agreed-upon funding commitments to cover the increased funding obligation(55%
to Developer; 45% to City). In no event shall City be required to appropriate or spend funds from
sources other than the state and federal funding referenced in this Agreement. Within thirty(30)days of
receiving notice of the overrun, the Developer will, if necessary,provide to City additional funds to
cover its increased contribution.
3.7 Cost Savings. If any of Developer's Contribution remains in trust after final payment to City's
general contractor for the Wall Street Project, the full amount shall be returned to Developer,pursuant to
Section 3.4.
3.8. Party-Specific Design Cost Increases. Developer shall be obligated to pay the full additional
cost of the Wall Street Project Cost increases attributable to changes in scope requested by Developer
after agreement on the 60%Plans. City shall be obligated to pay the full additional cost of the Wall
Street Project Cost increases attributable to changes in scope requested by City after agreement on the
60%Plans.
3.9 Survival. The provisions of this Article 3 shall survive termination for purposes of calculating
Developer's LID assessment.
Article 4. Termination.
4.1. Obligations. If neither party terminates this Agreement as provided in this Section 4, then both
parties are bound to complete their respective obligations under this Agreement.
4.2. Provisions governing termination. If this Agreement is terminated under Sections 3.3 or 3.5.5,or
4.3,the City may elect to proceed in either one of the following two ways,which shall be the sole
remedies for termination under these Sections. :
4.2.1 City may elect to construct the Wall Street Project including the ', street frontage
improvements along Developer's Property using any payments made by Developer,record the LID
Consent and Waiver at such time as Developer owns the Developer's Property, form the local
improvement district and levy assessments to pay for the frontage improvements, or
4.2.2 City may elect not to construct the Wall Street Project or may elect not to construct the
frontage improvements as part of the Wall Street Project, in which case it will permit Developer to build
a 3%4 street and utility improvement along the frontage of Developer's Property consistent with the 30%
Plans or a full street improvement(consistent with the 30%Plans), or any later plans approved by the
parties prior to termination and City shall allow Developer to use all plans, contract rights, studies,
specifications,permits and other materials including,without limitation, temporary access easements to
complete such street improvements. However, Developer shall not be obligated,under this Agreement,
to construct the looped water connection to SW Tech Center Drive. City shall issue occupancy permits
for the development of Developer's Property and permit temporary access to Developer's Property over
Wall Street and over Hunziker Road if the street is delayed. City shall return to developer any
unexpended funds paid by Developer and the waiver of right to remonstrate will be revoked and
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nullified, and the City will promptly execute any documents required for such revocation and
nullification.
4.3 Conditional right to terminate. In addition to any other right of termination provided for in this
Agreement,Developer shall have the right to provide City with a notice of termination of this
Agreement on or before July 30, 2017 provided all of the following preconditions to such termination
have been met:
4.3.1 Developer has filed a land use application for, at a minimum, 225,000 square feet of new
construction suitable for commercial use in the City of Tigard's I-P zone which has been deemed
complete by the City by March 31, 2017;
4.3.2 The City review authority on or before July 29,2017 has issued a decision denying the
application or imposing conditions of approval that Developer determines to be unacceptable.; and
4.3.3 Developer has executed and filed with City the irrevocable and unconditional Consent and
Waiver of the right to remonstrate against the formation of a local improvement district and assessment
for Developer's Property as described in Section 2.5 and shown in Exhibit F.
Article 5. Default,Dispute Resolution and Remedies:
5.1. Default
5.1.1 Events of Default:
a. Failure of a party to timely and fully perform its obligations hereunder after notice and
opportunity to cure as provided in Section 5.1.2 shall be a material breach of this Agreement.
b. Any assignment by Developer for the benefit of creditors,or adjudication as a
bankrupt, or appointment of a receiver,trustee or creditor's committee over any of such parties.
There shall be no cure for a breach under this Section.
5.1.2 Notice and Opportunity to Cure. The party asserting that a breach has occurred shall
provide the other party with written notice of the breach and a minimum of ten days to cure the breach in
the event of a failure to pay on time or a minimum of 15 days to cure any other breach or to satisfy the
party asserting the breach that adequate resources will be deployed and steps taken to cure the breach
within a time agreed to by the parties.
5.1.3 Mediation. Except for a breach described in Section 5.1.1b, if a dispute is not resolved
during the opportunity to cure and unless agreed otherwise by the parties, the parties shall participate in
at least four hours of mediation as a prerequisite to bringing any available legal or equitable remedy,
including termination. Mediation shall be initiated by written notice of one party to the other, setting
forth a brief description of the nature of the dispute. If the parties are not able to informally agree on a
mediator within 14 days, the matter shall be submitted to Arbitratrion Services of Portland and the
selection and mediation shall be conducted in accordance with the rules of the Arbitration Services of
Portland.
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Mediation proceedings hereby are designated as settlement negotiations, and to the extent
allowed by law, all offers, promises, conduct and statements,whether oral or written, made in the course
of the mediation by any party shall be confidential and inadmissible in legal proceeding involving the
parties;provided, however,that evidence which is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in the mediation.
5.2. Remedies
5.2.1 The non-defaulting party may terminate this Agreement if the other party is in default of
this Agreement as provided in Section 5.1.
5.2.2. Each party shall have all available remedies at law or in equity to recover damages and
compel the performance of the other party under 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 one any one or more of such
remedies shall not preclude the exercise of, at the same time or later, any other remedy for the same
default.
5.2.3 Notwithstanding termination for breach or availability of any other remedy, City may form
the local improvement district, construct the � street frontage improvements and assess Developer's
Property for the cost thereof,including any other amounts due but not paid under this Agreement.
Article 6 Miscellaneous Provisions:
6.1 Discrimination. Developer agrees that in performing its obligations under this Agreement, it will not
discriminate against any employee or applicant for employment because of race,color, religion, age,
gender, sexual orientation or national origin.
6.2 Governing Law; Venue; Jurisdiction. This Agreement shall be governed and construed according
to the laws of the State of Oregon,without regard to its choice of law provisions. Any action or suit to
enforce or construe any provision of this Agreement by either party shall be brought in the Circuit Court
of the State of Oregon for Washington County_
6.3 Thud parties. City and Developer are the only parties to this Agreement and are the only parties
entitled to enforce its terms. There are no third-party beneficiaries of this Agreement.
6.4 Notices.All notices given under this Agreement shall be in writing and may be delivered by
electronic mail,personal delivery,by overnight courier service, or by deposit in the United States Mail,
postage prepaid, as certified mail,return receipt requested, and addressed as follows:
City: 13125 SW Hall Blvd.
Tigard, OR 97223
Attn: Lloyd Purdy
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With a copy to: Jordan Ramis
Two Centerpointe Drive, 6`h Floor
Lake Oswego, OR 97035
Attn: Tim Ramis
Email: tim.ramis@jordatiramis.com
Developer: TC Tigard LLC
1300 SW Fifth Avenue, Suite 3050
Portland.OR 97201
Attn: Steven Wells
Email: sxvells@trammellcrow.com
With a cop) to: Radler White Parks& Alexander LLP
111 SW Columbia Street,Suite 1100
Portland. OR 97201
Attn: Barbara Radler
Email: bradler et radlerwhite.com
Notices shall be deemed received by the addressee upon the earlier of actual delivery or refusal of a
party to accept delivery thereof. The addresses to which notices are to be delivered may be changed by
giving notice of such change in address in accordance with this notice provision.
6.5. Time is of the Essence, Unavoidable Delay.
6.5.1. Time is of the essence in the performance of and adherence to each and every provision
of this Agreement.
6.5.2 Neither party shall be considered in breach of or in default with respect to any
obligation created hereunder or progress in respect thereto if the delay in performance of such
obligations is due to causes that are unforeseeable. beyond its control. and without its fault or
negligence, including but not limited to natural disasters, acts of the public enemy, acts of the
government(except for the City when the party seeking the benefit of this section is the Cit)),acts of the
other part. strikes, litigation involving a party or others relating to zoning or other governmental action
or inaction pertaining to the Project, extraordinary delay in the issuance of necessary permits for the
Project, and unusually severe weather or delays of suppliers or subcontractors due to such causes or any
similar eN ents andror occurrences beyond the control of such party.
The time or times for performance of the obligations shall be extended for the period of the unavoidable
delay; provided, however, that the party seeking the benefit of this Section shall, within ten (10) days
after the part) becomes aware of the causes of any such unavoidable delay, notify the other party in
%%Titing of the cause or causes of the delay and the estimated time of correction. If such delay occurs
after award of the construction contract, the parties shall negotiate in good faith an apportionment of an}
delay damages or related expenses of the construction Contractor.
6.6. No Partnership. Nothing contained in this Agreement or any acts of the parties hereb) shall be
deemed or construed by the parties. or by an) third person. to create the relationship of principal and
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agent,or of partnership, or of joint venture between Developer and City.
6.7. Non-waiver. Waiver by any party of strict performance of any provision of this Agreement shall not
be deemed a waiver of or prejudice a part'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 NNaiver explicitly waives that
provision for all instances.
6.8. Non-waiver of Government Rights. Subject to the terns and conditions of this Agreement and
except as expressly agreed in this Agreement. by making this Agreement, City specifically is not
obligating itself or any other agency with respect to any police power or regulatory actions relating to
development or operation of the Project and other improvements to be constructed in the Project,
including. but not limited to, rezoning. variances.environmental clearances or any other governmental
approvals which are or Ma)r be required.
6.9. Partial Invalidity. 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 not receive the
benefit of its bargain.then the other party shall renegotiate in good faith terms and provisions that will
effectuate the spirit and intent of the parties' agreement herein.
6.10. Calculation of Time. Unless referred to as Business Days,all periods of time shall include
Saturdays. Sunda)s.and Legal Holidays. However, if the last day of any period falls on a Saturday,
Sunday.or legal holiday. then the period shall be extended to include the next day which is not a
Saturday. Sunday, or Legal Holiday. "Business Days"shall mean '41onday through Friday, and`Legal
Holiday" shall mean any holiday observed by the State of Oregon.
6.11. Headings. The section headings are for convenience in reference and are not intended to define or
limit the scope of any provision of this Agreement.
6.12. 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.
6.13. Amendments. This Agreement ma} be modified only by a writing signed by the parties.
6.14. Entire Agreement. This Agreement and the attachments hereto are the entire agreement between
the parties. There is no other oral or written agreement between the parties with regard to this subject
matter. There are no oral or written representations made by a party, implied or express,other than those
contained in this Agreement.
7
City of Tigard Date
Page 12 of 13
TC/EIL Tigard, LLC, a Delaware limited liability company
By: TC Tigard, LLC, a Delaware limited liability company
Its Managing Member
By: Trammell Crow Portland Development Il, Inc., a Delaware corporation
Its Managing Member
By: -L
Steven J. Wells,President Date
Page 13 of 13
EXHIBIT A
Developer's Property
�/
LDS `
R �
pa T
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r `
T
+ T �♦
4 \
r EAST �.
t FIELDS
TRUST
1 n PROPERTY
V ' �
DS
1
1
i
P TY
r
c
P&W RAILROAD
EXHIBIT B
Description of Wall Street Construction and Utilities
HHNZIKER ROAD
ii7 RAMMELL CR
CHARTER i� DEVtIDPNEIR
MECHANICAL
—{ 1-- 70'ROW
i
f� r
2,040 LF
I NEW ROAD
v 7TIAMNELL CROW
POTSO DOG : A DtVEU:ANENT
PARK(CITY ; F-
OWNED) y
i FIELDS TRUST PROPERTY
w
E
TRAMMELL CROW
DEVELOPMENT
AGILYK UNDEALOP®
PAri'TL
IT WATERU►ME LOOP FROM
HLMQ[KER TO TECH CENTER DR
IB'STORM UNE `C\
TO DITCH OUTFALLEMODAMM
Ow
1O°VIS'ON HUNZIKER INFRASTRUCTURE
�t>u�c WOR"DEPAP7T661T � �IotA1E
T.T4 S.W. n7= £X B
MM SM-AN-4171 DEVELOPER AGREEMENT
`"". EXHIBIT B - 9/27/le 95047
EXHIBIT C:
Wall St. Schedule Surnmari (Proposedi
February 6,2017 Issue RFP for design and construction administration services
March 7,2017 First option to terminate agreement(per section 4.1)
March 15,2017 City Acquisition of ROW(non-binding per section 1.4)
March 28,2017 Issue NTP for design and construction administration services
March 28,2017 $77,000 payment due from Trammell Crow(per section 3.2.4)
May 28,2017 600 o drawings completed
May 28,2017 $77,000 payment due from Trammell Crow(per section 3.2.4)
July 15,2017 90°'o drawings completed
July 15,2017 $38,500 payment due from Trammell Crow(per section 3.2.4)
August 20,2017 Final drawings completed
September 15,2017 Advertise invitation to bid documents for construction
November 15,2017 Issue notice to proceed to contractor/begin construction (may be earlier)
November 15,2017 $1,457,500 payment due from Trammell Crow(per section 3.2.4)
December 15,2017 Road Construction begins (latest date)
July 22,2018 Construction completion
Schedule is contingent upon EDA review and affirmation of RFPs.
Wall Street Project Cost(Summary from 30%Design)
Expense Summary for Wap Street Proiect from 30%Design Amount
TEMPORARY FEATURES AND APPURTENANCES $ 259,000
ROADWORK $ 336,905
DRAINAGE AND SEWERS $ 479,930
BASES $ 141,575
WEARING SURFACES $ 531,254
PERMANENT TRAFFIC SAFETY AND GUIDANCE DEVICES S 28,200
PERMANENT TRAFFIC CONTROL AND ILLUMINATION SYSTEMS $ 157,500
RIGHT OF WAY DEVELOPMENT AND CONTROL $ 326,340
WATER SUPPLY SYSTEMS $ 433,395
Property/ROW S 600,000
30% CONTIGENCY $ 808,230
CITY PROJECT MANAGEMENT FEES $ 114,000
30%DESIGN COSTS $ 220,000
FINAL DESIGN COSTS,PERMITTING&BIDDING $ 350,000
INSPECTION FEES S 180,000
Total(Estimated) S 4,966,329
EXHIBIT DI and D2
D1: Wall Street Industrial ROW
RIGHT—OF—WAY ti�N2i�£R
DEDICATION sfFr z000318"E
AUGUST 26, 2016
N30'58'41"E
7.00'
POINT OF
BEGINNING
T.L. 400 /
MAP 2S 1 D1CA
MERITAGE FIVE, LLC /
PARCEL 1 `
A /
06
RIGHT-OF-WAY /
O DEDICATION
O� 3
0.74 So.0.740 ACRES
�Ny
4 NJO'58'43"E /
Q' 1601.49' PROPOSED EASTERLY
TRACT A RIGHT-OF-WAY
PARCEL 2 / DEDICATION
T.L 500 /
MAP 2S 1 01CA -30'58'43"W 161536'
CITY OF TIGARD
T.L. 200 /
MAP 2S 1 OICA 20' T.L. 1100
WALL STREET / MAP ZS 1 01
INDUSTRIAL, LLC DAVID M. MUNRO. SUCCESSOR
& A. RICHARD VIAL / TRUSTEE OF THE FRED W
EXECUTIVE CENTER, LLC FIELDS REVOCABLE LIVING
/ TRUST AGREEMENT
314 W 151h Sheat
Venc,ouwr,WA 98860.2927
380 895.3466
80
3895.8787 tax
F
A DIVISION OF P8S'
r SJ N40*32'31'W wwv'hft ma
�C21.09' DRAWN BY: RFS SCALE 1"-200' 8/26/2016
,phtljO�
LF I CHECKED BY: TLG I JOB NO. 4265-00 1 SHEET 1 OF 1
D2: Fields TrusvTrammell Crow ROW
S30'58'43"W 7.00' - U N59'33'18"W 20.00'
_cI,�SW HUNZIKER
POINT OF STREET
COMMENCEMENTPOINT OF NA0
RIGHT-OF-WAY BEGINNING �s's4"�3g0" 1
570'15'55"W 8
DEDICATION PARCEL 1 / 30.19' 30. J
AUGUST 26, 2016 A T. 1 L. 35'L3
6 MAP 25 1 O1CA
Q / DAVID M. MUNRO, SUCCESSOR
(\ TRUSTEE OF THE FRED W.
CURRENT - 50' FIELDS REVOCABLE LIVING
TRUST AGREEMENT
Q LOT LINE
TRACT 0T, TL 1100 /
.A„
OLD LOT LINE
N30'58'43"E TL 100/800
1615.36'
/hamTL 100
PARCEL 2z MAP 2S 1 01CA
3
e� DAVID M. MUNRO, SUCCESSOR
\ TRUSTEE OF THE FRED W.
� FIELDS REVOCABLE LIVING
CCC PROPOSED TRUST AGREEMENT
WESTERLY
RIGHT-OF-WAY / RIGHT-OF-WAY
DEDICATION DEDICATION
/ 9 FT.
2.475 2.475 ACRES
T.L 2D0
/ 50'
T.L 1100 T L 1600
MAP 2S 1 01 MAP 25 1 Ol
DAVID M. MUNRO. SUCCESSOR DAVID M MOF T SUCCESSOR
TRUSTEE
TRUSTEE OF THE FRED W. HE FRED W.
/ FIELDS REVOCABLE LIVING FIELDS REVOCABLE
TOCABLE LIVING
�C2 TRUST AGREEMENT TRUST AGREEMENT
S4 314 W 15th Street
tiA p Vancouver,WA 986862927
p. 360.695 3488
360.695 8787 fax
,r fp�lL ro ��j A DIVISION OHpj
wwwhcft.com
L4 DRAWN BY: RFS SCALE: 1"=200' 1 8/26/2016
CHECKED BY. TLC I JOB NO.: 4265-00 1 SHEET 1 OF 2
EXHIBIT E
Map Showing Right of Way on Developer's Property
Legal description on file as part of Right of Way Acquisition.
530"58'43"W 7.00' LI N59'33'18"W 20.00'
G1
POINT OF GSW HUNZIKER COMMENCEMENT STRE
POINTRIGHT—OF—WAY BEGINNINNGG / 76.
>D s, cj
DEDICATION PARCEL 1
S70 *
DEDICATION 9
AUGUST 26, 2016 p / T L 600 30 35 L3
6 MAP 2S 1 01CA
O / DAVID M MUNRO, SUCCESSOR
(\ TRUSTEE OF THE FRED W.
FIELDS REVOCABLE LIVING
O CURRENT - ��
LOT UNE TRUST AGREEMENT
TRACT O TL 1100 /
"A"
4 OLD LOT UNE
4' N30'58'43"E / TL/00/800
1615.36' ,y
TL I DO
PARCEL 2 ^~ MAP 2S 1 01CA
i
r� DAVID M MUNRO. SUCCESSOR
TRUSTEE OF THE FRED W
FIELDS REVOCABLE LIVING
PROPOSED y'F TRUST AGREEMENT
WESTERLY
RIGHT-OF-WAY / RIGHT-OF-WAY
DEDICATION DEDICATION
/ 107,829 FT.
2.475 ACRES
/
T L 200 /
/ 50'
T.L 1100 T L 1600
J MAP 2S 1 01 MAP 25 I Ol
DAVID M MUNRO. SUCCESSOR OAM MOF TH SUCCESSOR
TRUSTEE OF THE FRED W TRRUU STEE REVOCABLE LIVING
FRED W
FIELDS REV
FIELDS REVOCABLE LIVING
/ I--C2 TRUST AGREEMENT TRUST AGREEMENT
4, 914 W IM SUVM
Varcarver.WA 0800-2927
/1/ `';)�� `\i• �`- HD 960605.8m fax
A DIVISION OF PBS'
�p F s
ycFs �F L4 DRAWN BY: RFS SCALE: 1"-200' 1 8/26/2016
CHECKED BY: TLC " NO.: 4265-00 1 SHEET I OF 2
Exhibit F
AFTER RECORDING RETURN TO:
City of Tigard Economic Development
13125 SW Hall Blvd
Tigard,Or 97223
This space provided for recorder's use.
IRREVOCABLE WAILER OF REMONSTRANCE
AND CONSENT TO LOCAL IMPROVEMENT FORMATION AND ASSESSMENT
CITY OF TIGARD, OREGON (Waiver and Consent)
Property Description:
Owner(s) Name:
On Owner and the City of Tigard (City)entered into the Hunziker Infrastructure
Development Agreement(Agreement).That Agreement provides that City shall construct the Wall
Street Project(Project), including frontage improvements that Owner would be conditioned to provide at
its expense in conjunction with land use approval for development of the Property, owned by Owner,
and legally described in the attached and incorporated Exhibit A.
Owner expressly acknowledges City's legal authority to require that Owner construct or pay the full cost
of the '/ street and utilities as public improvements along Owner's frontage as provided for herein. The
required public improvements subject to this Waiver and Consent consist of:
Dedication of right of way and construction of a Y4 street improvement along the west and south
boundaries of Owner's Property. The'/< street improvements for Wall Street include two segments. One
is a 3-lane segment. One is a 2-lane segment. Descriptions provided below:
A 3-lane segment with a 70 foot right-of-way section from station 10+80 to 17+60 as shown in the 30%
submittal-rev 2 dated August 2016 by MSA, Inc. This segment includes a 6 foot wide sidewalk, 5.5
foot planter strip, and curb and gutter on one side and with a 6 foot bike lane, 1 I foot travel lane and a
12 foot center turn lane equaling a total improvement width of 49 feet.
Wall Street transitions from a 3 lane to 2 lane road from station 17+60 to 20+00.
A 2-lane, 52 foot right-of-way section from station 20+00 to station 31+20 shall include a 6 foot wide
sidewalk, 5.5 foot planter strip, and curb and gutter on one side and with a 20 foot pavement width
equaling a total improvement width of 32 feet. Within the new road alignment,an 8"sewer, 12"waterline
and a 15"storm line will be placed to serve the adjacent properties.
The estimated cost of these improvements is$1.83M to 2.07M.
Owner agrees that the improvements to be built will constitute"local improvements"as defined in
Oregon law and Tigard Municipal Code chapter 13.04 that will directly enhance and benefit the
Property. Owner agrees that on completion of construction City may levy the entire cost of the required
public improvements against the Property, including LID formation and financing costs, as provided in
the engineer's report or as modified and approved by City Council, and that the cost shall be an
assessment and lien against the Property.
In consideration for the right to terminate the Agreement under the conditions provided therein and for
City advancing funds to construct the Wall Street Project, including Owner's portion of the
improvements, Owner, for itself, its heirs, executors,successors and assigns,hereby:
IRREVOCABLY CONSENTS TO AND WAIVES any right it otherwise may have to remonstrate
against or object to: City's formation of a Local Improvement District that includes the Property,
construction of the public improvements previously noted and levy of assessment liens for full cost of
the public improvements along Owner's frontage as provided in the engineer's report;
IRREVOCABLY WAIVES any and all defects and irregularities,known or unknown, current and in
the future, in any proceeding for formation of such Local Improvements District, for the certification of
the cost of the improvements and for the levying of assessments for same,including but not limited to
the giving of notice of any proceeding concerning same.Nothing herein shall constitute a waiver of any
right Owner otherwise may have to provide testimony in opposition to or regarding the local
improvement district, including the amount of the assessment proposed to be levied against the Property;
and,further
IRREVOCABLY WAIVES any claim against the City,known or unknown, current or future, to the
effect that the improvements deferred by this agreement constitute unlawful exactions or takings of
property without compensation.
Owner reserves the option to finance the assessments as provided in TMC 13.04.070, except that Owner
hereby irrevocably consents and agrees that the finance period shall be limited to five years from the
date of the assessment.
This Waiver and Consent is in addition to, and not in lieu of, any conditions of approval imposed on
specific development application and any City fees and charges, including but not limited to SDC's.
City may record this document in the Washington County, Oregon deed records, during any time in that
Owner owns the Property,except that City shall not record this waiver if City abandons the Project or
excludes Owner's property from the Project as provided in the Agreement. This Waiver and Consent
shall expire without further notice and have no further legal effect if the City has not commenced
proceedings to form a Local Improvement District that includes this property for some or all of the
improvements set out above, or the substantial equivalent of same, within five(5) years from the date of
execution of this Waiver and Consent.
If a court determines that any portion of this Waiver and Consent is invalid or unenforceable, the
remainder shall remain in full force and effect. A court determination that this Waiver and Consent is
invalid or unenforceable, in whole or in part, shall in no way relieve Owner from its obligation to pay
for the cost of construction of the Wall Street improvements along Owner's frontage.
This document affects your legal rights. By executing this Consent and Waiver, you
are representing that you have had an opportunity to consult with legal counsel,
have read, understand and knowingly agree to the terms herein.
(Signature page to follow)
OWNERS)
TC/EIL Tigard, LLC, a Delaware limited liability company
By: TC Tigard, LLC, a Delaware limited liability company
Its Managing Member
By: Trammell Crow Portland Development II, Inc., a Delaware corporation
Its Managing Member
By:!2t-19 [,'/i✓t-e�
Steven J. Wells, President Date
STATE OF OREGON )
) ss.
County of Multnomah )
Personally appeared the above named ��PiV 641 W�l S and acknowledged the
foregoing instrument to be a voluntary act.
OFFICIAL STAMP
�lARMUNDA M TEN NEY
NO A Y PUBLIC FOR ORE N �'�� QQ7
^ COMMI89NNJ NO.950027
My Commission Expires: AV Y, 1 31, "�D>o MYCOMMISSIONEXPIRES APRIL 28,2020
CITY OF TIGARD
By:
Its: City Manager
STATE OF OREGON )
ss.
County of Washington )
This instrument was acknowledged before me on , 20_,by
as City Manager of City of Tigard.
NOTARY PUBLIC FOR OREGON
My Commission Expires: