HomeMy WebLinkAbout2025-054829 ~ AVA Declaration of Restrictive Covenants ~ 12539-12547 SW Main Street Washington County,Oregon 2025-054829
D-IRUL
Stn=2 S AKINS 12/03/2025 03:52:17 PM
$55.00$11.00$10.00$60.00 $136.00
I,Joe Nelson,Director of Assessment and Taxation and Ex-Officio
County Clerk for Washington County,Oregon,do hereby certify that
RETURN TO: the within instrument of writing was received and recorded in the
City of Tigard book of records of said county.
Attn:Economic Development Program Joe Nelson, Director of Assessment and
13125 SW Hall Blvd. Taxation, Ex-Officio County Clerk
Tigard,OR 97223
SPACE ABOVE FOR RECORDER'S USE
CITY OF TIGARD
PROJECT USE AGREEMENT, DECLARATION OF RESTRICTIVE COVENANTS,
AND EQUITABLE SERVITUDE
VERTICAL HOUSING DEVELOPMENT PROGRAM
THIS PROJECT USE AGREEMENT, DECLARATION OF RESTRICTIVE COVENANTS
AND EQUITABLE SERVITUDE (the "Agreement") is made and entered into this 2 2-1 day of
04. fv'34y- , ` zS;by and between AVA Tigard Development,LLC(the"Recipient")and the
City of Tigard, (the "City").
PURPOSE
The City desires to make available to the Recipient a certification for a 10-year partial tax
exemption on a Certified Vertical Housing Development Project, to stimulate the development of the
housing project known as AVA Tigard Development (the "Project") located in Tigard, Oregon. The
legal property description of said Project is set forth in Exhibit A, which also is attached hereto and
incorporated herein by reference.
The Recipient is willing to receive the Certification, to satisfy the conditions thereof, and to
execute and record this Agreement for the purpose, in part, of creating restrictive covenants and an
equitable servitude that shall run with the Project land and bind any and all subsequent owners of the
Project for the term of this Agreement.
AGREEMENT
In consideration of the above purposes and of the representations, covenants, warranties and
agreements set forth herein, and for other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows in order to ensure that the Project will be
operated in accordance with this Agreement and that the following covenants, restrictions and charges
shall run with the land and be binding and a burden upon the Project, and all portions thereof, and upon
any purchaser, grantee, owner or lessee of any portion of the Project and any other person or entity
having any right, title or interest therein and upon the respective heirs, executors, administrators,
devisees, successors and assigns of any purchaser, grantee, owner or lessee of any portion of the Project
and any other person or entity having any right, title or interest therein, for the length of time that this
Agreement is in effect.
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development, 12539-12547 SW Main Street, Tigard
Page 1 of 9
SECTION 1. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE
RECIPIENT CONCERNING USE OF THE CERTIFICATION AND MAINTENANCE OF
PROJECT AS A CERTIFIED VERTICAL HOUSING DEVELOPMENT PROJECT. Recipient
hereby represents, covenants, warrants and agrees that:
a. Recipient will maintain the mixed residential and non-residential uses of the Certified Project for a
period of 10 years (the "Compliance Period") from the first year the county assessor partially
exempts the project from the specified ad valorem taxes. Mix of residential and non-residential uses
will remain as proposed in the Project Application as identified in Exhibit B.
b. Certified Use of the project is restricted to a total of two eligible floors.
c. Recipient will comply, and will cause its agents, employees, contractors, subgrantees and assigns, if
any, to comply with the terms and conditions of this Agreement and all otherwise applicable laws
(including, without limitation, all applicable federal, state and local statutes, rules, regulations,
ordinances and orders affecting the Project or activities related thereto).
SECTION 2. COVENANTS TO RUN WITH THE LAND; EQUITABLE SERVITUDE.
The Recipient represents, covenants, warrants and agrees that:
a. The City is making the Certification to the Recipient as an inducement to the Recipient to develop
and operate the Project in accordance with the terms of this Agreement. In consideration of the
receipt of the Certification, the Recipient has entered into this Agreement with the City and has
agreed to restrict the use of the Project during the Compliance Period as set forth in this
Agreement.
b. The covenants, restrictions, and charges set forth herein with respect to the Project will be
deemed restrictive covenants running with the Project land and also will be deemed an equitable
servitude running with the Project land. These restrictive covenants and equitable servitude will
pass to and be binding upon the Recipient's successors in title including any purchaser, grantee
or lessee of any portion of the Project, will pass to and be binding upon the respective heirs,
executors, administrators, devisees, successors and assigns of the Recipient or any purchaser,
grantee or lessee of any portion of the Project and will pass to and be binding upon any other
person or entity having any right, title or interest in the Project. Each and every contract, deed
or other instrument hereafter executed covering or conveying the Project or any portion thereof
or interest therein must contain an express provision making such conveyance subject to the
covenants,restrictions, and charges contained herein;provided,however, that any such contract,
deed or instrument will conclusively be held to have been executed, delivered and accepted
subject to such covenants, restrictions and charges regardless of whether or not such covenants,
restrictions and charges are set forth or incorporated by reference in such contract, deed or
instrument.
SECTION 3. BURDEN AND BENEFIT. The parties hereby declare their understanding and
intent that the burdens of the covenants, restrictions, and charges set forth herein touch and concern the
Project land and that the Recipient's legal interest in the Project may be rendered less valuable thereby.
The parties further declare their understanding and intent that the benefits of such covenants,restrictions,
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 2 of 9
and charges touch and concern the Project land by enhancing and increasing the enjoyment and use of
the owners and tenants of the equivalent floors,the intended beneficiaries of such covenants,restrictions,
and charges and by furthering the public purposes for which the partial exemption is certified.
SECTION 4. COMPLIANCE REPORTING. The Parties hereby agree that Recipient will
provide an annual certification, in a format and on a schedule approved by the City in its sole discretion,
that the Recipient is fulfilling its obligations under this Agreement. The City may inspect the Project,
and any part thereof, and may inspect and copy all records of the Project, upon reasonable notice to the
Recipient. The Recipient, its agents, employees, and subcontractors will cooperate fully with the City
in any requested inspection or compliance monitoring.
SECTION 5. SUBORDINATION. The parties agree that this Agreement and the restrictive
covenants and equitable servitude created hereunder is subordinated to the lien of Recipient's first lien
mortgage. The City, at its sole discretion, may subordinate this Agreement to other financing on the
Project.
SECTION 6. TERM OF AGREEMENT. Recipient will maintain the mixed residential and
non-residential uses of the Certified Project for the duration of the Compliance Period, as defined in
Section 1.a. to this Agreement. This Agreement may be terminated, at a foreclosing Senior Lender's
option with written notice to the City of such election, upon a completed foreclosure by a Senior Lender
or upon delivery by the Recipient of a deed in lieu of foreclosure to a Senior Lender, in which case this
Agreement will terminate and be of no further force or effect. As used herein, a "Senior Lender" is the
then-current first lien mortgagee on the Project or other lender to whom the City has subordinated its
interest in this Agreement.
SECTION 7. TERMINATION. The City may teiniinate this Agreement, without further
liability, immediately upon notice to the Recipient:
a. If the Recipient fails to perform or breaches any of the terms of this Agreement; or
b. If the Recipient is unable or fails to commence the Project within six (6)months from the date of
this Agreement;
c. If the City loses the authority to administer the Program, is determined by its counsel or otherwise
as lacking the authority to administer the Program, or fails to receive or loses necessary funding,
appropriations, limitations or other expenditure or position authority sufficient to carry out the
terms of this Agreement; or
SECTION 8. REMEDIES. If the Recipient defaults in the performance or observance of any
covenant, agreement, or obligation set forth in this Agreement and if such default remains uncured for a
period of 30 days (or such shorter period as the City may indicate in its notice) after the notice thereof
has been given by the City to the Recipient, then the City, at its option, may take any one or more of the
following steps:
a. Have access to and inspect, examine and make copies of all of the books and records of the
Recipient pertaining to the Project;
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 3 of 9
b. May decertify the project or a portion thereof;
c. Take such other action under this Agreement, at law or in equity as may appear necessary or
desirable to the City to enforce the covenants, agreements, warranties, and obligations of the
Recipient hereunder.
No waiver or delay in enforcing the provisions hereof as to any breach or violation may impair,
damage or waive the right of any person entitled to enforce the same to obtain relief against or recover
for the continuation or repetition of such breach or violation or any similar breach or violation thereof
at any later time or times.
SECTION 9. RECORDING AND FILING.The Recipient shall cause this Agreement and all
amendments and supplements hereto to be recorded and filed in the real property records of Washington
County. The Recipient will pay all fees and charges incurred in connection with any recording. The
Recipient shall provide either the original recorded document or a certified copy of the recorded
document within ten days of the date of this Agreement.
SECTION 10. GOVERNING LAW; VENUE. This Agreement is governed by the laws of
the State of Oregon. The State of Oregon Circuit Court of Washington County, or to the degree
necessary, the U.S. District Court for the District of Oregon have exclusive jurisdiction over any action
brought by or against the City under this Agreement. The Recipient hereby consents to such exclusive
jurisdiction and waives any and all objections it might have thereto.
SECTION 11. AUTHORITY. Recipient hereby represents, warrants and certifies that:
a. It possesses legal authority to apply for and accept the terms and conditions of the Certification
and to carry out the proposed Project;
b. Its governing body, if any, has duly authorized the filing of the application, including all
understandings and assurances contained therein;
c. The person identified as the official representative of the Recipient in the application is duly
authorized to act in connection therewith and to provide such additional information as may be
required. The Recipient's official representative has sufficient authority to make all certifications
on its behalf;
d. This Agreement does not and will not violate any provision of any applicable law,rule,regulation
or order of any court, regulatory commission, board or administrative agency applicable to the
Recipient or any provision of the Recipient's organic laws or documents;
e. This Agreement has been duly executed by an official representative of Recipient, delivered by
Recipient, and will constitute the legal, valid and binding obligations of the Recipient,
enforceable in accordance with their terms.
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 4 of 9
SECTION 12. INDEPENDENT CONTRACTOR. Recipient acknowledges and agrees that
it is acting in its own independent capacity under this Agreement and not as an agent or subcontractor
for the City. Grantee assumes full responsibility for its own actions and will provide for its own
insurance and other compliance responsibilities, including providing for its own workers' compensation
and other insurance coverage, as needed.
SECTION 13. AMENDMENTS. This Agreement may be amended only by a written
instrument executed by the parties hereto or by their successors and duly recorded in the real property
records of Washington County.
SECTION 14. SEVERABILITY. If any provision of this Agreement is determined to be
invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining portions hereof
will not in any way be affected or impaired thereby.
SECTION 15. CONSTRUCTION. The parties to this Agreement acknowledge that each party
and its counsel have participated in the drafting and revision of this Agreement. Accordingly, the parties
agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting
party will not apply in the interpretation of this Agreement or any amendment, modification, supplement
or restatement of the foregoing or of any exhibit to this Agreement.
SECTION 16. NO LIMITATIONS ON ACTIONS OF ISSUER IN EXERCISE OF ITS
GOVERNMENTAL POWERS. Nothing in this Agreement is intended, nor may it be construed, to in
any way limit the actions of the City in the exercise of its governmental powers. It is the express intention
of the parties hereto that the City retains the full right and ability to exercise its governmental powers
with respect to the Recipient, the Project, the land, and the transactions contemplated by this Agreement
to the same extent as if it were not a party to this Agreement or the transactions contemplated thereby,
and in no event may the City have any liability in contract arising under this Agreement by virtue of any
exercise of its governmental powers.
SECTION 17. TIME IS OF THE ESSENCE. Time is of the essence in the performance of
the obligations of this Agreement.
SECTION 18. NOTICES. Any notice required to be given hereunder will be made in writing
and shall be given by personal delivery or first class mail, postage prepaid, at the addresses specified
below, or at such other addresses as may be specified in writing by the City or the Recipient:
To the City: City of Tigard
Attn: Economic Development Program
13125 SW Hall Blvd.
Tigard, OR 97223
To the Recipient: AVA Tigard Development, LLC
Attn: Amireh Saberiyan
P.O. Box 213
Beaverton, OR 97075
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard(Development,12539-12547 SW Main Street, Tigard
Page 5 of 9
[Signature Page to Follow]
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 6 of 9
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
RECIPIENT: CITY:
AVA Tigard Development, LLC CITY OF TIGARD
I
BY: By
Title: „A-Lim vc t A4 `i�-z_ Title: a aerair-
CITY OF TIGARD )
rOte ) ss:
County of Ad )
The foregoing instrument was acknowledged before me thislatay of No LJeL41 iitiL , ,
by S,41E,R/Vel91 AtitREH ( 't/sse-1, , who is a
of
i r..i\ n .N4,; ,stN ,{- Aui{ - 640 9 C I o0 Lj, on behalf of
the Recipient.
,f o w, OFFICIAL STAMP , f"' -
MANOJ G GHAG //L�
, 1 !TCO q ISSIONLNO 1060O Ox
Notary Public for the State of Oregon
• My commission expires: S 2.02q
CITY OF TIGARD )
) ss:
County of V e VAVil n )
The foregoing instrument was acknowledged before me this tlgdday of Q Lko , 1/KS ,
by..e- ►it ►, - ` '' _ , who is a
,, 1er tv of the City of Tigard.
J rar LSWAM
' '' r' PUMA" "� NotaryPublic or the State of Oregon
4? ' s r .24,2= • My commission expires: 1141o\itiV
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 7 of 9
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT 2S102AB02100
A tract of land located in the Northeast One-Quarter of Section 2, Township 2 South, Range 1
West, Willamette Meridian, City of Tigard. Washington County Oregon and being particularly
described as follows:
Beginning at the most southerly corner of Lot 15 of the plat"Electric Addition to Tigardville",
Washington County Plat Records,also being on the northerly right-of-way line of SW Main Street
(38.67 feet from centerline);thence along said northerly right-of-way line,North 43°02'46"West
1.38 feet (40.02 feet from centerline): thence continuing along said northerly right-of-way line
along a non-tangent curve to the right with a Radius of 5689.58 feet,a Delta of 0°08'25".a Length
of 13.93 feet,and a Chord of South 59°30'17"West 13.93 feet (40.00 feet from centerline);thence
continuing along said northerly right-of-way line, South 59°34'29" West 153.53 feet; thence
leaving said northerly right-of-way line.North 30°25'3I"West 30.04 feet;thence North 11°27'10"
East 18.04 feet;thence North 30'25'31"West 32,58 feet;thence North 59°34'29"East 10.92 feet;
thence North 30°25'31" West 11.52 feet to the southerly right-of-way line of Pacific Highway
(Station 92+30.18, Left 66.01 feet); thence along the southerly right-of-way line of Pacific
Highway North 56°51'21"East 99.52 feet(Station 91+31.47. Left 82.24 feet);thence continuing
along the southerly right-of-way line of Pacific Highway North 46°42'21"East 76.85 feet to the
westerly line of Document Number 2014-11885(Station 90°4 5403, Left 80.59 feet):thence along
said westerly line, South 34°37'27" East 65.16 feet to the northerly line of Document Number
2014-26159;thence along said northerly line, South 61'47'33" West 40.11 feet to the westerly
line of said Document Number;thence along said westerly line,South 34°37'27"East 51.12 feet
to the northerly right-of-way line of SW Main Street(40.00 feet from centerline); thence along
said northerly right-of-way line.South 59°34'29" West 21.57 feet; thence continuing along said
northerly right-of-way line,North 43°02'46"West 3.76 feet to the Point of Beginning.
The above tract of land contains 16,512 square feet,more or less.
The basis of bearings is per SN 32417.
12/21/2020
REGISTERED
PROFESSIONAL
LAND SURVEYOR
JIMA
DREG
JANIUARY 9, 2007
NrIC VIHIiE
1:ENEWS /30/22
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev.4/2024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 8 of 9
EXHIBIT B
MIX OF RESIDENTIAL&NON-RESIDENTIAL SQUARE FOOTAGES
Following Page
VERTICAL HOUSING PROGRAM PROJECT USE AGREEMENT,Rev,4.1024
AVA Tigard Development,12539-12547 SW Main Street, Tigard
Page 9 of 9
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EXEM PTION CALCULATOR City of Tigard, OR
Community Development
VERTICAL HOUSING DEVELOPMENT ZONE 13125 SW Hall Blvd.
Tigard,OR 97223
Project Basics
No.Residential Units 22
No.of Project Floors 3
No.of Buildings 1
Average No.Project of Floors 3.00
Square Footages
Commercial facing Primary Street 5,754
Total facing Primary Street 5,754
%Commercial facing Primary Street
Total Residential 17,428
Total Residential Common 2,890
Total Low-Inc. Residential
Low-Income Common
Average Floor Area (Project) 8,139
Total Project S.F. 24,418
Exemption Multipliers
Exemption Multiplier, Residential Uses 2.14
Exemption Multiplier, Res.Uses(Low-Income)
Exemption Rates
Property Exemption Rate up to 80% 42.82%
Land Exemption Rate 00.00%
Staff Review By: Sean Farrelly,Redevelopment Manager
Date: Oct.21,2025
PROJECT INFORMATION
PROJECT ADDRESS CITY,STATE ZIP CODE COUNTY
12539-12547 SW Main Street Tigard,OR 97223 Washington
TAX LOTS
2S102AB02100
PROPERTY OWNER
OWNER NAME PHONE EMAIL ADDRESS
AVA Tigard Development, LLC 503-860-6335 amyscavaroasteria.Com
OWNER ADDRESS CITY,STATE,ZIP
7713 SW Nimbus Ave Beaverton,OR 97008
COMPANY NAME
APPLICANT(if different from above.)
APPLICANT NAME PHONE EMAIL ADDRESS
APPLICANT ADDRESS CITY,STATE,ZIP