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TCDA Resolution No. 18-03 CITY OF TIGARD, OREGON TOWN CENTER DEVELOPMENT AGENCY RESOLUTION NO. 18-0 3 A RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR OF THE TOWN CENTER DEVELOPMENT AGENCY TO EXECUTE A DISPOSITION AND DEVELOPMENT AGREEMENT WITH AVA TIGARD DEVELOPMENT LLC TO REDEVELOP THE MAIN STREET AT FANNO CREEK PROPERTIES (TAX LOTS 2S102AB02000 AND 2S102AB02100) WHEREAS, Goal 5 of the City Center Urban Renewal Plan is to" promote high quality development of retail,office and residential uses that support and are supported by public streetscape,transportation,recreation and open space investments;" and WHEREAS, Section VIII,paragraph B of the City Center Urban Renewal Plan authorizes the City's urban renewal agency to dispose of property to support development or redevelopment of retail, office,housing and mixed use project within the Urban Renewal Area;and WHEREAS,the Town Center Development Agency(ICDA) is the owner of two contiguous properties on SW Main Street(the"Main Street at Fanno Creek properties");and WHEREAS, the TCDA and AVA Tigard Development LLC have negotiated in good faith a Disposition and Development Agreement(DDA);and WHEREAS,the DDA commits AVA Tigard Development LLC to substantially complete the project two years after closing. 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 Main Street at Fanno Creek Disposition and Development 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: The Executive Director is authorized to take such further steps as reasonably are necessary to administer the Disposition and Development Agreement pending further action by this Board as provided for in the Agreement, including finalizing the Project Schedule. SECTION 4: This resolution is effective immediately upon passage. TCDA Resolution No. 18- Page 1 . PASSED: This day of '/!q Li 52018. C - ,C,dy of Tigard T n Center Development Agency ATTEST: i _4a Lie Recorder—City of Tigard Town Center Development Agency TCDA Resolution No. 18--a3 Page 2 4/29/18 Final Exhibit A to Resolution DEVELOPMENT AND DISPOSITION AGREEMENT AMONG: Town Center Development Agency of the City of Tigard, Oregon ("TCDA"), an Oregon Chapter 457 urban renewal agency AND: Ava Tigard Development,LLC, an Oregon limited liability company("Ava" or"Developer") ("TCDA"and "Developer" are referred to herein as "Party"or collectively, as "Parties") RECITALS A. Pursuant to the Charter of the City of Tigard("City"), Tigard Municipal Code 2- 64 and ORS Chapter 457,the City adopted the City Center Urban Renewal Plan on November 22, 2005,by Ordinance No. 05-17 (including all amendments thereto,the"UR Plan"). The UR Plan establishes an urban renewal area("UR Area")within which the TCDA will focus efforts to encourage private development, cure blight, and enhance economic development opportunities. B. On April 24, 2007, by Ordinance No. 07-07, the City Council adopted the Downtown chapter as a Special Planning Area of the Tigard Comprehensive Plan. TCDA is responsible for coordinating and guiding development of the Downtown Special Planning Area on behalf of the City in accordance with the vision and goals of the City Center Urban Renewal Plan. C. The property that is the subject of this Agreement is located at 12533-12537 SW Main St.,Tigard, Oregon and is described in the attached and incorporated Exhibit A(the "Property"). D. TCDA obtained a$400,000 EPA grant for environmental cleanup on the Property. TCDA has completed the work necessary to obtain a Certification of Completion and to deliver the Property at Closing in compliance with Consent Judgment C152218CV entered into with the Department of Environmental Quality("DEQ") filed on May 29, 2015 (the "Consent Judgment"), subject to recording of an Easement and Equitable Servitude(the"EES")pursuant to the Certificate of Completion including institutional controls. E. TCDA agrees that after Closing, Developer shall have the right to modify or approve the design or the scope of any institutional controls required by DEQ so long as such modifications are acceptable to DEQ. Any TCDA approvals will not be unreasonably withheld. F. TCDA issued a request for letters of interest for development of the Property on or about February 8, 2017. On February 27, 2017, Developer submitted a letter of interest outlining its plan for acquisition and redevelopment of the Property and proposing development of a four- story mixed-use building. On March 21, 2017 the TCDA interview panel consisting of community stakeholders met in a public meeting to review the letter of interest and interview Page 1 -- Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution Developer's representatives. The panel unanimously recommended that the TCDA seek to negotiate a development agreement with Developer, subject to City Council approval. G. ORS 457.170 authorizes TCDA to convey real property in accordance with the City Center Urban Renewal Plan where such real property is not needed for public use and when the public interest will be served. TCDA has entered into this Agreement with the expectation that the Project will achieve the public goals desired for the Property, act as a catalyst for development in the UR Area, and fully capitalize the public investments. H. The purpose of this Agreement is to memorialize the Parties' understanding of their respective roles and commitments in the development of the Property, including a strategy for assuring that private development projects achieve financial feasibility. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement,the Parties agree as follows: AGREEMENT SECTION 1. DEFINED TERMS Capitalized words that are not the first word of a sentence, are defined terms. A defined term has the meaning given it when it is first defined in this Agreement. Defined terms may be used together, and the combined defined term has the meaning of the combined defined terms. A defined term that is a noun may be used in its verb or adjective form and vice-versa. Defined terms may be used in the singular or the plural. Unless provided otherwise, "TCDA" includes its officers, employees and agents and"Developer"includes its officers, employees and agents. The Recitals are incorporated into this Agreement by this reference. SECTION 2. DESCRIPTION OF THE PROJECT 2.1 The Project. The"Project" is a mixed use,multi-family residential and retail development as shown in the"Concept Design"attached as Exhibit B (the "Concept Design"). The first floor above the parking floor will include retail space, likely consisting of 7,000 sq. ft. devoted to retail use and with a minimum of 1,000 sq. ft. of publicly accessible outside seating facing Fanno Creek. The second, third, fourth, and possibly fifth floors above the parking floor will consist of up to 17 dwellings. The materials, fit, finish, and overall construction quality of the commercial/retail portions will be substantially comparable to or exceed the quality demonstrated in the Ava Roasteria—Beaverton facility constructed by Developer. The Parties acknowledge that the Project description and Concept Design are subject to modification, refinement and final approval by TCDA as provided for in this Agreement. 2.2 Vertical Housing Tax Credit. The Project may be eligible for the grant of a partial property tax exemption pursuant to the Oregon Vertical Housing Development Program. Developer intends to design and construct the Project to qualify as provided in ORS 285C.450 to 285C.480 and applicable administrative rules. Page 2—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution SECTION 3. CONVEYANCE 3.1 Deed. Upon satisfaction of the Conditions Precedent to Closing set forth in Section 3.6, and payment of the amount set forth in Section 3.2, TCDA agrees to convey the Property to Developer by statutory warranty deed(the "Deed"), free and clear of all encumbrances, except Final Permitted Exceptions as described in Section 3.4 ("Conveyance"). 3.2 Consideration and Earnest Monet/ 3.2.1 The monetary consideration for the Conveyance of the Property by TCDA to Developer is $390,000 ("Purchase Price"). The Parties agree that the Purchase Price is the fair market value of the Property given the restrictions and obligations imposed on development under this Agreement and that the terms of this Agreement constitute additional consideration. 3.2.2 Within five(5)days after the Effective Date of this Agreement, Developer will deposit with Escrow Agent(as defined below)earnest money in the amount of$30,000, $15,000 of which is non-refundable except for breach by TCDA (the "Earnest Money"). The entire Earnest Money shall be credited against the Purchase Price at Closing. 3.2.3 Developer shall pay to TCDA the remaining balance of the Purchase Price at Closing. 3.3 Closing. Subject to the terms, covenants, and conditions of this Agreement,the Conveyance of the Property to Developer will occur in an escrow closing at the local offices of First American Title Insurance Company chosen by Developer, (the "Escrow Agent")not later than the date that is 12 months from the Effective Date, unless extended by agreement of the Parties. A reasonable extension of the Closing date,not to exceed 90 days, will be granted provided that the Party requesting the extension has proceeded diligently and in good faith to comply with the Project Schedule provided for in set forth in Exhibit `C' and to satisfy the Conditions Precedent to Closing and the request is not the result of unreasonable delay. Extensions beyond that date shall be by agreement of the Parties within each Party's sole discretion. ("Closing"). 3.4 Title Review. 3.4.1 Within thirty(30) days after TCDA records the EES required pursuant to the Certificate of Completion,TCDA will cause the Escrow Agent to deliver to Developer a preliminary title report on the Property and copies of all exception documents(the "Title Report").Developer will have thirty (30) days after receiving the Title Report to notify TCDA if Developer objects to any item in the Title Report other than the EES. Those items to which Developer does not object are the"Permitted Exceptions". If Developer objects to any item, TCDA will have thirty(30) days after receiving Developer's objection to notify Developer of its intention to remove or not remove the objected to exceptions to title prior to Closing. If TCDA does not give its response to Developer's objections within the thirty(30) day period or if TCDA refuses to remove any such objected to exceptions, Developer will have thirty(30)days to Page 3—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution terminate this Agreement. If this Agreement is not terminated in accordance with the preceding sentence,the Permitted Exceptions together with the exceptions, if any, that Developer originally objected to and that TCDA refused to remove or failed to respond to will be deemed the "Final Permitted Exceptions". TCDA will not cause any additional exceptions to be recorded against the Property except those reasonably necessary to fulfill TCDA's obligations under the Consent Judgment without the written consent of Developer, which consent may be withheld in its sole discretion. TCDA promptly will notify Developer of any such additional exceptions recorded by TCDA and any third-party exceptions known by TCDA to have been recorded against the Property. 3.4.2 Developer may obtain an update to the Title Report at any time prior to the Closing. Developer will promptly give to TCDA a copy of any updated Title Report. Developer will notify TCDA of any objections to the exceptions to title that appear on the updated Title Report. Developer may not object to Permitted Exceptions as defined in Section 3.4.1. Within thirty(30)days of Developer's notice to TCDA described in the preceding sentence,TCDA will notify Developer of its intention to remove or not remove the objected to exceptions to title prior to Closing;provided,however, TCDA must remove any additional exception not consented to by Developer that is caused by TCDA. If TCDA refuses to remove any such objected to exceptions, Developer will have thirty(30)days to terminate this Agreement by notice to TCDA, or Close subject to same. Any additional exceptions that Developer accepts at Closing,together with the previous Permitted Exceptions, are the"Final Permitted Exceptions". The Closing date will automatically be extended to the extent necessary to accommodate a notice of objection from Developer that is less than thirty(30) days prior to the Closing date. 3.5 Title Insurance, Survey,Property Taxes and Closing Costs. 3.5.1 TCDA, at its expense,will provide Developer with a standard coverage Owner's Policy of Title Insurance, issued by Escrow Agent, and covering the Property when conveyed, and insuring Developer in the amount of the Purchase Price free and clear of encumbrances, except Final Permitted Exceptions. Developer, at its option and expense, may elect to obtain extended owner's coverage under such policy of title insurance with or without an ALTA Survey, and TCDA agrees to execute any affidavits or other documents reasonably required by the Escrow Agent to enable Developer to obtain such coverage. Developer may also elect to obtain a survey at its own expense. 3.5.2 The costs for recording the Deed and any other documents required by Developer to be recorded will be paid by Developer. Each Party will pay one-half(1/2)of any escrow fees charged by Escrow Agent. TCDA will pay any Washington County Transfer Tax. All other Closing costs, if any,will be allocated in accordance with the customary practice in Washington County. TCDA will pay only the annual payments due through Closing for any special assessments that have been paid in annual installments. Developer will assume liability for payment of any annual payments due after Closing for any special assessments that have been paid in annual installments. TCDA will pay any property taxes accruing to the Property resulting, from transfer of the Property from public ownership, and therefore the change of the Property's status from tax exempt to taxable. Developer will pay property taxes levied on the Property from and after Closing. Page 4--Development and Disposition Agreement--Ava Roasteria 4/29/18 Final Exhibit A to Resolution 3.6 ' Conditions Precedent to Closing. Developer and TCDA are not obligated to close the Conveyance unless the following conditions are satisfied to their reasonable satisfaction. Unless expressly provided otherwise,the Party benefited by a particular condition will not unreasonably withhold, condition, or delay acknowledgment that the condition has been satisfied and such Party may waive the condition in its sole discretion,provided such waiver will be in writing to the other Party to be effective. The Parties will act diligently and in good faith to satisfy conditions over which they have control or influence. 3.6.1 To the satisfaction of both TCDA and Developer: (a) The Parties have agreed on a Project Schedule and Project Plan. The Project Schedule shall be agreed on within 30 days of execution of this Agreement as provided in Section 6.1. Within 90 days of the Effective Date, Developer will prepare and submit to TCDA a draft Project Plan with sufficient detail to demonstrate compliance with the UR Plan,this Agreement and the Consent Judgment. TCDA staff will provide comments within 20 days of receipt of the draft Project Plan from Developer. Staff and Developer will work together reasonably and in good faith to reach agreement on a final draft Project Plan. Within thirty(30) days of such agreement, TCDA will conduct a public open house with the attendance and cooperation of Developer. After the open house, TCDA staff and Developer will have thirty(30) days to consider and incorporate public comments into any revisions reasonably determined by the Parties to be appropriate. TCDA staff will submit the final draft Project Plan, including any revisions and unresolved issues, to the TCDA Board for its review within forty-five(45)days of the open house. The TCDA Board will accept,reject or propose modifications and other comments within forty-five(45) days after receiving the final draft Project Plan. The TCDA Board's final decision will be at its complete discretion. Failure of the TCDA Board to respond by the due date will constitute acceptance. TCDA staff will not unreasonably withhold a recommendation that the Board approve the final draft Project Plan. Developer will have thirty(30) days from the date of TCDA Board action to notify TCDA that it accepts,rejects or proposes further modifications to the final draft Project Plan. Any substantial further modifications other than those reasonably necessary to conform to the TCDA Board's decision will be subject to review and approval by the TCDA Board in its complete discretion. TCDA may deem a failure to timely respond as a rejection. The draft Project Plan approved by the TCDA Board and Developer is referred to in this Agreement as the Final Project Plan. Developer acknowledges that approval of the Final Project Plan as provided for in this paragraph is not a determination that the Final Project Plan conforms to the Tigard Development Code and that Developer must obtain all land use approvals as provided below. (b) Developer has obtained any final land use approvals and permits for the Project required by the Code of the City of Tigard. "Final land use approval" will mean that the appeal period(s) for such approval has passed without an appeal being filed; or if an appeal is filed, it satisfactorily has been resolved including issuance of a final approval on remand and resolution of any appeal therefrom.Notwithstanding any other provision, either Party may terminate this Agreement as provided in Section 3.7 if the Party determines in its reasonable judgment that the terms or conditions of the "final land use approval" are materially inconsistent with this Agreement. Page 5—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution (c) TCDA has obtained a Certificate of Completion from DEQ and a satisfaction of judgment in CI52218CV. The parties have agreed to the terms of a DEQ access agreement. (d) The Parties have executed and TCDA has delivered to DEQ a Notice of Transfer of Property and Assignment and Acceptance of Prospective Purchaser Agreement(DEQ Prospective Purchaser Agreement No. 14-05 (the"PPA")and the Consent Judgment(Certificate of Completion. (e) The final construction plans for construction, including,plans and specifications for the Project,have been approved by all required governmental entities and agencies and those agencies,including the City of Tigard, have issued or are ready to issue all permits, including building permits,required to construct the Project, subject only to Developer's ownership of the Property. (f) The Parties have agreed to the final form of the Deed and any other conveyancing documents necessary to close the Conveyance. (g) No litigation is pending that presents a substantial risk that TCDA or Developer will be precluded from performing their respective obligations under this Agreement. (h) TCDA has obtained a lot line adjustment or partition approval establishing the parcel constituting the Property and a parcel consisting of the non-buildable area adjacent to Fanno Creek. 3.6.2 To Developer's satisfaction: (a) TCDA has title to the Property subject only to the Final Permitted Exceptions. (b) Escrow Agent has issued to Developer a binding commitment to issue to Developer an extended coverage Owner's Title Insurance Policy without an ALTA survey covering the Property in an amount not less than the Market Valuation, subject only to the Final Permitted Exceptions. (c) TCDA's representations and warranties set forth in this Agreement are true and correct as of the Closing. (d) TCDA is not in breach of this Agreement. (e) No material adverse change in the physical or legal condition of the Property has occurred. (f) All commitments between Developer and other parties contemplated for Project financing are in effect. (g) Developer has obtained a waiver or other form of written confirmation from the Oregon Bureau of Labor and Industries in form and substance as Developer reasonably Page 6—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution requires that confirms, among other things,that there is no obligation for Developer to pay prevailing wages in connection with the development of the Project. TCDA will cooperate with Developer in obtaining such determination. (h) Receipt of an environmental insurance policy(payment of the premium for which will be a Developer obligation) in form and substance as Developer reasonably requires with respect to the environmental condition of the Property. (i) Developer is satisfied that it has had an adequate opportunity to inspect and evaluate the Property, to conduct its due diligence and is fully satisfied with its knowledge, information and understanding of the Property conditions and suitability including but not limited to legal, environmental, geotechnical and other conditions. 0) Developer has received confirmation of prospective certification of eligibility for the Vertical Housing Development Zone partial tax abatement program. 3.6.3 To TCDA's satisfaction: (a) Developer's representations and warranties set forth in this Section are true and correct as of the Closing. (b) Developer is not in breach of this Agreement. (c) Developer has demonstrated financial feasibility for the Project to the reasonable satisfaction of TCDA by providing to TCDA: (i)within six (6)months of the Effective Date, a financing plan demonstrating that it is feasible for Developer to finance construction of the Project, including but not limited to equity contributions, funds from lenders evidenced by copies of nonbinding term sheets and similar documentation regarding other financing; (ii)prior to Closing, copies of binding commitment letters from lenders for the construction financing for the Project, written evidence of necessary equity commitments, commitments from public funding sources, including the approval by the TCDA, if necessary, subject to standard underwriting practices, for the construction of the Project, a pro forma financial statement including estimated return on investment, and such other documentation or assurances as may be reasonably required by TCDA. 3.7 Elections upon Non-Occurrence of Conditions. Except as provided below, if any condition in this Section 3 is not fulfilled to the reasonable satisfaction of the benefited Party or Parties on the date scheduled for Closing then such benefited Party or Parties may elect to: Page 7—Development and Disposition Agreement—Ava Roasteria' 4/29/18 Final Exhibit A to Resolution 3.7.1 Terminate this Agreement by written notice to the other Party,which termination will become effective fifteen (15)days after the notice of termination is sent("Termination Date")unless, before the fifteen(15) day period ends, such condition is fulfilled to the satisfaction of the benefited Party or Parties; 3.7.2 Waive in writing the benefit of that condition precedent to Closing and proceed in accordance with the terms hereof, or 3.7.3 Designate in writing a later date for Closing,to allow additional time for the condition to be fulfilled, if the condition can be fulfilled and the other Party agrees in writing to the later date. 3.8 Effect of Termination for Failure of Conditions Precedent. If this Agreement is terminated for failure to fulfill the Conditions Precedent to Closing and neither Party is in breach,.then all rights and obligations of the Parties under this Agreement will terminate other than the obligation to cooperate in preparing, executing and recording such documents as may be necessary or desirable to reflect the termination of this Agreement. Within 10 days of such termination,TCDA will instruct the Escrow Agent to return the Earnest Money, less the non-refundable portion. If a Party is in breach on the termination date, then the rights and remedies accruing to the other Party under this Agreement resulting from of such breach will survive termination of this Agreement. 3.9 Property Sold As-Is. 3.9.1 Developer and its affiliates are sophisticated purchasers, developers, operators and managers of real estate and real estate projects. Except for the representations expressly made by TCDA in this Agreement and in the conveyancing documents executed by TCDA at Closing, non-exercise of Developer's termination rights under this Agreement constitutes Developer's agreement that: (i)the Property will be conveyed to Developer"AS IS WITH ALL FAULTS", (ii) TCDA makes no warranties or representations as to the suitability of the Property for any particular use or for soil or environmental conditions or any other conditions of the Property for any improvements constructed by Developer or for any use, (iii)Developer has not relied on any representations or warranties outside the express terms of this Agreement,made by TCDA as to the environmental condition of the Property,the suitability of the soil conditions or any of the conditions of the Property and(iv) except as provided in Section 3.9.3 Developer expressly waives and releases TCDA, and TCDA will not be liable for any loss, cost or damage which may be caused or incurred by Developer by reason of any such soil, environmental or physical conditions of the Property. Further, TCDA has allowed Developer free access to TCDA's records with respect to the condition of the Property and has allowed Developer access to the Property for inspection and testing by Developer,to Developer's complete satisfaction. TCDA makes no representations or warranties whatsoever regarding the completeness, accuracy or reliability of such.records.TCDA will assist in obtaining the cooperation of other public and private agencies having such information upon request by Developer. 3.9.2 Except as provided in Section 3.9.3,Developer for itself and any entity affiliated with Developer, its successors and assigns, waives and releases TCDA from and against any Page 8—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution liability or claim related to the Property arising under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended(42 USC Section 9601 et seq.) ("CERCLA"),the Resource Conservation and Recovery Act of 1976(42 USC Section 6901 et seq.) ("RCRA"), the Clean Water Act(33 USC Section 1251, et seq.), the Clean Water Act(33 USC § 1251, et seq.),the Clean Air Act(42 USC 7401 et seq.),the Safe Drinking Water Act(42 USC § 304f, et seq.),the Hazardous Materials Transportation Act(49 USC Section 1801, et seq.) and the Toxic Substances Control Act(15 USC § 2601, et seq.) or any other federal, state, local or administrative agency ordinance, law,rule,regulation, order or requirement relating to environmental conditions or hazardous material(the"Environmental Laws"). For the purposes hereof, "Hazardous Material"will mean any substance,chemical, waste or other material which is listed, defined or otherwise identified as"hazardous"or"toxic"under any federal, state, local or administrative agency ordinance or law, including,without limitation, CERCLA and RCRA or any regulation, order, rule or requirement adopted thereunder, as well as any formaldehyde, urea, polychlorinated biphenyls,petroleum,petroleum product or by-product, crude oil,natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture thereof, radon, asbestos, and "source", "special nuclear"and"by-product"material as defined in the Atomic Energy Act of 1985,42 USC §§ 3011, et seq. (the "Environmental Laws") 3.9.3 TCDA will reimburse 50%of Developer's actual cost of remediating Unforeseen Environmental Conditions on the Property,not to exceed $100,000. An "Unforeseen Environmental Condition" is one that was not caused directly or indirectly by the negligence of the Developer and is required to achieve minimum compliance with the Environmental Laws. It does not include: the cost of Developer's normal and customary due diligence activities including testing and evaluation of the Property; the cost of compliance with, remediation or institutional controls contemplated in the Consent Judgment;Certificate of Completion or EES; remediation or amenities in excess of that required to obtain minimum compliance with Environmental Laws; site conditions other than environmental; Developer's internal costs,outside counsel fees, penalties assessed against Developer by DEQ or other environmental regulatory agency, costs of delay including loan or lost profit. Developer will notify TCDA immediately upon discovery of an Unforeseen Environmental Condition and TCDA will not be responsible for any costs incurred by Developer prior to such notice except for an exigent circumstance requiring immediate response. The Parties promptly will meet to evaluate the Unforeseen Condition and agree on a cost-effective response and remediation. Developer will share with TCDA all information obtained by Developer regarding the Unforeseen Environmental Condition and remediation options and hereby grants to TCDA a license to enter onto the Property'as reasonably necessary to evaluate the Unforeseen Environmental Condition and remediation. Developer is solely responsible for obtaining and complying with all required approvals and permits and for conducting the remediation at its sole expense except for TCDA's contribution. TCDA's contribution is secondary to environmental insurance proceeds obtained by Developer but applies to the amount paid by Developer within any deductible. Any amounts recovered by Developer from third-parties,including its consultants or contractors,will be applied to TCDA's contribution on a 50%basis. TCDA will provide staff assistance to help evaluate the Unforeseen Condition and remediation alternatives,to assist developer in identifying alternative sources of funding(other than TCDA or the City of Tigard) and in securing permits and approvals. TCDA may provide its reimbursement in the form of cash, a credit against the remaining purchase price or a combination. If TCDA and Developer are unable to resolve a dispute regarding remediation or reimbursement the issues will be submitted to Dispute Resolution. The Parties recognize that Page 9—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution any such dispute must be resolved expeditiously.3.9.4 The provisions of this Section will survive indefinitely Closing or termination of this Agreement, except that TCDA's obligation under Section 3.9.3 terminates upon Substantial Completion of the Project for claims not made by Developer prior to Substantial Completion. SECTION 4. POST-CLOSING OBLIGATIONS 4.1 Development. Except as otherwise provided for in this Agreement,Developer will, at its own cost, design, construct and complete the Project without additional public funding participation, ;except for tax abatement programs generally available to similar projects within Downtown Tigard. Developer will comply with the EES in accordance with the Certificate of Completion. Developer will use commercially reasonable efforts to begin and to complete development of the Project as set forth in the Project Plan,Project Schedule and Construction Schedule, subject to the terms of this Agreement. TCDA is not the developer of the Project. This Agreement is not intended to be a contract providing for construction by TCDA either directly or through a contractor. Developer is solely responsible for selecting a construction contractor and the rights and responsibilities of Developer,the general construction contractor and any construction subcontractors will be provided for in a construction contract to which TCDA is not a party. 4.2 Compliance with Approvals. All development will conform in all material respects to the Project Plan approved by TCDA (subject to such modifications as are approved by TCDA pursuant to the provisions of this Agreement), City development approvals and all applicable laws. If TCDA and Developer are unable to resolve a dispute regarding whether construction complies in all material respects with the approval by TCDA, including the quality of construction and materials, it will be submitted to Dispute Resolution. The Parties recognize that any such dispute must be resolved expeditiously. 4.3 Resources. Each Party will commit resources as it determines in its business judgment is commercially reasonable to meet the deadlines in the Project Schedule set forth in Section 6, as amended. 4.4 Liens. From and after the date Developer acquires title to the Property until the date the construction of the Project is substantially completed (the"Construction Period"),Developer will keep the property free clear of liens and encumbrances other than those related to financing and construction of the Project as determined in Developer's reasonable exercise of commercial judgment. In no event will Developer use the Property during the Construction Period as collateral for, or cause or permit it to be encumbered by, any obligation or potential obligation of Developer unrelated to the Project and Developer will promptly inform TCDA if any such lien or encumbrance is placed on the Property. Page 10—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution 4.5 Survival The provisions of this Section 4 will survive Closing. SECTION 5. PROPERTY INSPECTION AND ACCESS 5.1 Before Conveyance of Property. Before conveying the Property to Developer, TCDA will allow Developer to enter upon the Property, at all reasonable times whenever and to the extent necessary to conduct reasonable inspections and testing and to carry out the purposes of this Agreement. Developer will save, hold harmless and indemnify City, its officer's employees and agents against any claims arising from such access except to the extent such claims arise out of the negligence, gross negligence or willful misconduct of City;provided, further, that in no event will Developer be required to indemnify TCDA for such claims with respect to any conditions existing on,under or within the Property that existed prior to the Closing of the purchase of the Property by Developer. 5.2 After Conveyance of Property. After conveying the Property and until a temporary or final Certificate of Occupancy is issued, TCDA will, upon reasonable notice, be permitted access to evaluate conformance with the terms of this Agreement. TCDA agrees not to interfere with the work occurring on the Property. TCDA employees will enter the Property at their own risk and will comply with all construction site rules established by Developer and Developer's contractor. In addition, TCDA will not be entitled to indemnification for any losses, liability or injury arising in connection with entry to the Property pursuant to this Section, except to the extent the same arises out of the negligence, gross negligence or willful misconduct of Developer or its contractor. This provision will survive Closing. SECTION 6. PROJECT AND CONSTRUCTION SCHEDULES 6.1 Proiect Schedule. Within 30 days of execution of this Agreement, the Parties will agree to a schedule of pre-construction activities attached, which agreed on schedule will be incorporated into this Agreement by reference.Each Party will employ diligent,good faith efforts to meet the milestone dates set forth therein and to keep the other Party informed of progress toward completion of milestones. 6.2 Construction Schedule. 6.2.1 At least sixty(60) days prior to the date for commencing construction set forth in the Project Schedule, Developer shall a provide a construction schedule (the"Construction Schedule")to TCDA that conforms to the Project Schedule and deadlines established in this Agreement. TCDA may provide comments on the construction Schedule,which Developer will consider in good faith. 6.2.2 Developer will commence construction on or before the date set forth in the Project Schedule but no later than twelve(12)months after Closing. For purposes of this section, "Commence Construction Date"means the date that Developer has entered into a binding Page 11—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution contract providing for construction of the Project to start, the contractor has mobilized equipment and labor on the Property or at an appropriate staging area and has commenced significant physical alteration of the Property such as excavation or grading. 6.3 Substantial Completion. Subject to force majeure events or the discovery of previously unknown environmental conditions related to conditions or contamination existing on the Property prior to the Closing or conveyance of the Property to Developer, Developer will achieve Substantial Completion of the Project on or before the date specified in the Construction Schedule but no later than two (2) years after Closing. For purposes of this section, "Substantial Completion"will mean that the Project is sufficiently complete that the Developer obtains a temporary certificate of occupancy or certificate of occupancy, whichever first occurs. 6.4 Schedule Changes. Each Party shall provide the other with prompt notice if the Parry determines that completion of a milestone may be delayed beyond the date set forth in the Project Schedule, including a request to modify the Project or Construction Schedule, which request will not unreasonably be refused. Developer may request from TCDA an extension of dates specified in the Project or Construction Schedule,which will not be unreasonably withheld. The dates specified in the Project or Construction Schedule are subject to and will be extended as provided in Section 12.26, Force Majeure, or environmental conditions as provided in this Agreement. 6.5 Survival. This Section 6 will survive Closing. SECTION 7. REPRESENTATIONS AND WARRANTIES 7.1 TCDA Representations. TCDA's representations and warranties under this Agreement are limited to the following, each of which will be deemed made as of the Effective Date,will be deemed remade and effective as of Closing and will survive Closing. TCDA represents and warrants to Developer that: (a) To TCDA's knowledge, except as has been disclosed to Developer in the Environmental Reports delivered by TCDA to Developer as identified below,there has been no generation,manufacture,refinement,transportation, treatment, storage, handling, disposal, transfer, release or production of Hazardous Substances on the Property, or underground storage tanks existing on the Property, except in compliance with Environmental Laws currently in effect, and TCDA has not received any additional notice of the Release of any Hazardous Substances on the Property, other than what is listed in the Environmental Reports. TCDA makes no representation that the Environmental Reports comprise the complete file regarding the Property at the DEQ or any other governmental agency.The Environmental Reports delivered by TCDA to Developer prior to execution are: (i) 10/19/12: Phase I ESA; Page 12—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution (ii) 11/26/12: Phase II Subsurface Investigation (iii) 5/30/13: Phase II Additional Subsurface Investigation (iv) 9/26/14: Site Characterization Report (v) 5/28/15: Consent Judgment (vi) 11/17/15: Phase I(conducted prior to purchase of property) (vii) 2/1/17: Analysis of Brownfield Cleanup Alternatives Report (viii) 3/17/17: Remedial Action Plan (ix) 1/5/18 AMEC completion report (x) 3/17/17 Contaminated Media Management Plan TCDA represents that the Environmental Reports are as received by TCDA. TCDA makes no further representation or warranty regarding the Environmental Reports, including but not limited to their accuracy, completeness or suitability for use. Receipt of the Environmental Reports listed in this subparagraph(a)is acknowledged by Developer. (b) TCDA has full power and authority to enter into and perform this Agreement in accordance with its terms, and all requisite action has been taken by TCDA to authorize the execution of this Agreement and the transactions contemplated hereby. (c) TCDA is not a"foreign person"within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. (d) To TCDA's knowledge, there is no litigation, action, suit, or any condemnation, environmental, zoning, or other government proceeding pending or threatened, except DEQ's ongoing investigation and remediation of the adjacent Drycleaner 1 and Drycleaner 2 Sites, which may affect the Property, TCDA's ability to perform its obligations under this Agreement, or Developer's ability to develop the Project. (e) To TCDA's knowledge and except as disclosed in writing to Developer, the Property is in compliance with all applicable laws,rules, regulations, ordinances and other governmental requirements. (f) To TCDA's knowledge, and except as disclosed in the Environmental Documents, TCDA has not received or given any notice stating that the Property is in violation of any applicable laws, rules, regulations, ordinances or other governmental requirements. (g) To TCDA's knowledge, no representation, warranty or statement of TCDA in this Agreement or any of the exhibits attached hereto contains any untrue statement of a material fact or omits a material fact necessary to make the representation, warranty or statement not misleading. (h) As of the Effective Date, TCDA is not in breach of this Agreement and no event has occurred that, with the passage of time or the giving of notice or both,would constitute a breach of TCDA under this Agreement. (i) TCDA is the legal and beneficial fee simple titleholder to the Property and,to TCDA's knowledge,the Property is free and clear of all liens, encumbrances, claims, covenants, Page 13—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution conditions,restrictions, easements, rights of way, options,judgments or other matters, except as disclosed by the Title Report and subject to the EES. 0) There are no current leases or services contracts affecting the Property and at the time the Property is conveyed to Developer, the Property will be free and clear of any leases or services contracts. (k) TCDA has not entered into any legally binding purchase and sale agreement (whether contingent or not) for the Property. (1) TCDA will within ten(10)days provide notice to Developer if TCDA obtains actual knowledge of a fact or circumstance that would render a material representation or warranty inaccurate in any material respect. For purposes of this Section 7.1, "TCDA's s knowledge"means the actual knowledge of a management employee of TCDA currently engaged in and responsible for acquisition, management or disposition of the Property for the TCDA. 7.2 Developer Representations. 7.2.1 Developer's representations and warranties under this Agreement are limited to the following, each of which will be deemed made as of the Effective Date,will be deemed remade and effective as of Closing and will survive Closing: Developer represents and warrants to TCDA that: (a) Developer has full power and authority to enter into and perform this Agreement in accordance with its terms and all requisite company action has been taken by Developer to authorize the execution of this Agreement and the transactions contemplated hereby. To Developer's knowledge, execution and delivery of this Agreement and the performance of its obligations hereunder do not require the consent of any third party that has not been obtained. (b) To Developer's knowledge,no representation, warranty or statement of Developer in this Agreement, the exhibits or the financial information provided pursuant to Section 3.6 contain any untrue statement of a material fact or omits a material fact necessary to make the representation, warranty or statement not misleading. (c) To Developer's knowledge,Developer is not in breach of this Agreement and no event has occurred that, with the passage of time or the giving of notice or both,would constitute a breach of Developer under this Agreement. (d) Developer enters into this Agreement without reliance on any oral or written representations by TCDA, its employees, agents or consultants, regarding any aspect of the Property,the Project or its feasibility or financing, or compliance with any governmental regulation except as expressly stated in this Agreement or documents referenced herein. (e) Developer is not(and is not engaged in this transaction with or on behalf of)a person or entity that TCDA is prohibited from doing business with pursuant to anti- Page 14—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution terrorism laws and regulations including but not limited to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Patriot Act),the Bank Secrecy Act, the Trading with the Enemy Act,the International Emergency Economic Powers Act, sanctions and regulations promulgated pursuant thereto by the Office of Foreign Assets Control as well as laws related to the prevention and detection of money laundering. (f) Developer will within ten(10) days provide notice to TCDA if Developer obtains actual knowledge of a fact or circumstance that would render a material representation or Warranty inaccurate in any material respect. (g) For purposes of this section, "Developer's knowledge" means the actual knowledge of any of the principals or senior management of Developer without duty of inquiry or investigation and excluding imputed knowledge. SECTION 8. TERM AND TERMINATION 8.1 Effective Date. This Agreement is effective when all Parties have executed the Agreement,the "Effective Date"; The execution will be subject to entity authorization,which in TCDA's case includes TCDA Board approval. 8.2 Termination. This Agreement will terminate on the earlier of: 8.2.1 Developer provides notice of termination pursuant to Section 3.4. 8.2.2 Either Party provides notice to the other that a Condition Precedent to Closing has not been fulfilled at Closing and the time to cure has elapsed as provided in Section 3.7. 8.2.3 By either Party on 10 days' written notice if Closing has not occurred within 15 days after the Closing Date, or any extension. 8.2.4 At any time upon mutual written agreement of the Parties. 8.2.5 Either Party terminates for breach as provided in Section 9. Termination shall not foreclose any action or remedy for breach except as expressly provided in this Agreement. Page 15—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution SECTION 9. BREACH AND CURE 9.1 Breach by Developer. 9.1.1. Any breach of the provisions of this Agreement by Developer, including the Project or Construction Schedule and that is not remedied within sixty(60) days after TCDA has given notice to Developer specifying the breach,provided, however,that if the TCDA determines that it is more likely than not that the breach was not willful and cannot with due diligence be cured within a period of sixty(60) days,Developer will have a reasonable period of time to cure such breach. In making its determination, TCDA will act reasonably and in good faith, and will consider the nature of the breach,whether Developer has proposed a reasonable course of action, is or will diligently effect such cure and whether the cure may be accomplished within a reasonable period. TCDA may require that Developer periodically provide TCDA with a written assessment of the cure describing: the curative actions taken since the last written report,the estimated date by which the cure will be completed,the remaining impediments to completing the cure, and the planned curative acts for the next month. 9.1.2 Any assignment by Developer for the benefit of creditors, the filing of a petition in bankruptcy by or against Developer that is not removed within thirty(30)days, or the appointment of a receiver,trustee or creditor's committee over Developer shall be a breach of this Agreement. There will be no cure for a breach under this Section 9.1.2. 9.2 Breach by TCDA. Any breach of the provisions of this Agreement, including, without limitation, whether by action or inaction, and such breach continues and is not remedied within sixty(60)days after Developer has given TCDA notice specifying the breach; provided,however, that if Developer determines that it is more likely than not that the breach was not willful and cannot with due diligence be cured within a period of sixty(60) days,TCDA will have a reasonable period of time to cure such breach. In making its determination,Developer will act reasonably and in good faith, and will consider the nature of the breach, whether TCDA has proposed a reasonable course of action is or will diligently proceed to effect such cure and whether the cure may be accomplished within a reasonable period. Developer may require that TCDA periodically provide Developer with a written assessment of the cure every month describing: the curative actions taken since the last written report, the estimated date by which the cure will be completed, the remaining impediments to completing the cure, and the planned curative acts for the next month. 9.3 Survival. The provisions of this Section shall survive Closing as to any post-Closing obligations. SECTION 10. REMEDIES 10.1 Pre-closing. Page 16—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution If Developer breaches prior to Closing such that the consummation of the transaction herein contemplated does not occur as herein provided by reason of any breach of Developer, and Developer fails to complete the purchase of the Property,TCDA may terminate this Agreement by written notice to Developer. Developer and TCDA agree that it would be impractical and extremely difficult to estimate the damages suffered by TCDA as a result of Developer's failure to complete the purchase of the Property pursuant to this Agreement, and that under the circumstances existing as of the date of this Agreement, the liquidated damages provided for in this Section 10 represent a reasonable estimate of the damages which TCDA will incur as a result of such failure. THEREFORE,DEVELOPER AND TCDA HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL DAMAGES THAT TCDA WOULD SUFFER IN THE EVENT THAT DEVELOPER BREACHES AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS $20,000, AGAINST WHICH THE EARNEST MONEY WILL BE CREDITED. SUCH AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY DEVELOPER, AND AFTER PAYMENT THEREOF TO TCDA,NEITHER PARTY WILL HAVE ANY FURTHER OBLIGATION TO OR RIGHTS AGAINST THE OTHER. If TCDA breaches under this Agreement prior to Closing, Developer will be entitled in addition to all other remedies available at law or in equity, (a)to seek specific performance of TCDA's obligation to Close under this Agreement; or(b) to terminate this Agreement. Upon termination for breach by TCDA, Escrow Agent will return to Developer the entire Earnest Money. All documents will be immediately returned to the Party who deposited them, and neither Party will have any further rights or obligations under this Agreement,except as otherwise provided in this Agreement. 10.2 Post-Closing Remedies of TCDA for Developer Breach Other Than For Failure to Timely Commence or Complete Construction. If Developer breaches under this Agreement after Closing(other than timely commencement or completing construction of the Project), TCDA may seek specific performance or other remedy provided by law. This Section 10.2 shall survive Closing as to any post-Closing obligations and shall terminate on Substantial Completion. 10.3 Post-Closing Repurchase Right of TCDA for Developer Failure to Timely Commence or Complete Construction. Subject to force majeure and environmental delays as provided in this Agreement, if Developer fails to commence construction within one(1)year of the Closing Date, subject to any extension, or fails to substantially complete the Project by the date that is two (2)years after Closing, TCDA will have the right to repurchase the Property by written notice exercising such repurchase right no later than sixty(60)days after the date such repurchase right accrues (and if not timely exercised, such repurchase right will automatically be deemed waived)on the following terms and conditions: Page 17—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution (a) Payment to Developer of 75%of the purchase price and 75% of the of the total amount of all hard costs of construction plus soft costs, including design,permitting and other directly related costs as of the date of re-conveyance except attorney fees; (b) Reduced by: the amount of any assessments, liens or other charges against the property that Developer has not paid as of the date of re-conveyance,payment or assumption of any mortgage including any payment or assumption costs; the cost of an ALTA title insurance policy in the amount of the purchase price insuring TCDA as owner and any other closing costs. (c) If there are unasserted, contingent or disputed claims that TCDA reasonably determines may result in liens against the property or otherwise reduce the value thereof; TCDA may deposit a reasonable estimate of such claims into escrow to be released to Developer only upon resolution of such claims. (d) Upon receipt of notice that TCDA has elected to repurchase,Developer will promptly provide TCDA with accurate,current statements itemizing all costs and amounts owed and claims asserted or likely as described above. After review of the statements, TCDA may rescind the purchase or elect to proceed by providing written notice to Developer. (e) Upon receipt of notice that TCDA will proceed with the purchase, Developer will thereafter take all action, including the payment of all debts and the execution of all documents necessary to re-convey marketable title to the Property to TCDA, free and clear of all liens and encumbrances other than the lien of any mortgages and the Final Permitted Exceptions. In addition, TCDA may accept other title exceptions or obligations that are the result of Developer's pursuit of the development of the Project, Developer will re-convey the Property by statutory warranty deed to TCDA in escrow through the offices of the Escrow Agent. (0 At closing of the re-conveyance,Developer will provide TCDA with a copy of and the right, without any representation and warranty, to use any work product produced by any third parties for Developer to the extent Developer has obtained an appropriate reliance letter, including copies of all Property market research,design documents, engineering documents, and which Developer is authorized to release; and design and construction contracts which TCDA may use in any manner that it deems appropriate with respect solely to the Property with the consent of any Party having approval rights thereunder. (g) In lieu of exercising its right to repurchase,TCDA may exercise any remedy available by law as regards a post-Closing breach by Developer. (h) This Section 10.3 will survive Closing as to any post-Closing remedies and shall terminate on Substantial Completion. SECTION 11. DISPUTE RESOLUTION With respect to any provision of this Agreement where Dispute Resolution is referenced as a means to resolve disagreements among the Parties, the provisions of this Section will apply. When a disagreement exists,the Parties will first use good faith efforts to resolve such disagreement. If such disagreement is not resolved within fifteen(15)days after written notice seeking a meeting to resolve such disagreement in good faith,then any Parry whose agreement, Page 18—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution consent or approval is required may initiate this dispute resolution process by written notice to the other Party whose agreement,consent or approval is required. The Parties will select a person(a"Dispute Resolver"). The Dispute Resolver will set the timing, procedures and rules for resolving the dispute. The Dispute Resolver will be independent of the Parties and will not have had a business relationship with any Party within the last five (5)years. The Dispute Resolver will be a person who(a)is a resident of the Portland metropolitan area, and(b)has substantial experience in resolving complex business issues in a public or private context. If after ten(10) days the Parties cannot agree on the person who will be the Dispute Resolver,then the Parties will meet, and each will submit two(2) qualified candidates' names, the resulting names will be placed in a vessel, and the first name drawn will be the Dispute Resolver. The Dispute Resolver's fees will be paid equally by the Parties. SECTION 12. MISCELLANEOUS PROVISIONS 12.1 Good Faith and Fair Dealing. The Parties will have imputed to all their duties, obligations, and acts performed under this Agreement a standard of conduct of good faith and fair dealing. 12.2 Inspection of Records; Confidentiality. 12.2.1 Each Party agrees that,upon the reasonable prior notice from the other Party, it will make available to the requesting Party its records, reports and information pertaining to the Project for review,but not copying(unless agreed upon by the non-requesting Party),to inform the requesting Party and to enable the requesting Party to determine the other Party's compliance with the terms of this Agreement. Nothing herein requires disclosure of any information protected by the attorney-client or other privilege. 12.2.2 Each Party agrees to keep as confidential any document or information marked by the other Parry as confidential, including the reason the document is considered confidential. This will not preclude a Parry from sharing 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 Agreement. If TCDA is served with a request to produce information marked confidential by Developer or deemed so by TCDA,TCDA will inform Developer and provide Developer at least five(5) days to contest disclosure prior to disclosure. However, the parties acknowledge that, as a public entity, TCDA must and will comply with ORS 192.311, et. seq. 12.3 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. 12.4 Governing Law; Venue; Jurisdiction. This Agreement will 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 Page 19—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution provision of this Agreement by either Party will be brought in the Circuit Court of the State of Oregon for Washington County. 12.5 Third Parties. TCDA 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, except for Developer's affiliate,Ava Roasteria, Co., an.Oregon corporation, which operates Ava Roasteria coffee shops. 12.6 Notices. All notices given under this Agreement will 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: TCDA: City Center Development Agency City of Tigard 13125 SW Hall Blvd. Tigard, OR 972232 Attn: Marty Wine, Exec. Director Email: ingIy ,ti arg d_or.gov With a copy to: City Attorney City of Tigard 13125 SW Hall Blvd Tigard OR 97223 Attn: Shelby Rihala Email: shelbyr@tigard-or.gov Developer: Ava Tigard Development, LLC 4740 SW Hall Blvd. Beaverton, OR 97005 Attn: Amy Saberiyan Email: am .sy aberiyan!kneekeng corn With a copy to: Ater Wynne LLP 1331 NW Lovejoy Street, Suite 900 Portland, OR 97209 Attn: Ernest G. Bootsma Email: egbAaterwynne.com Notices will 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. Page 20—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution 12.7 Time is of the Essence. Time is of the essence in the performance of and adherence to each and every provision of this Agreement. 12.8 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 TCDA and Developer. 12.9 Non-waiver. Waiver by any Party of strict performance of any provision of this Agreement will 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 will be a waiver of only that provision. A waiver of a provision in one instance will be a waiver only for that instance,unless the waiver explicitly waives that provision for all instances. 12.10 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 of Tigard, 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 may be required; provided,however, that execution of this Agreement constitutes TCDA's acceptance of a mixed use for the Property,which acceptance shall not be reconsidered or altered during the term of this Agreement except as provided in this Agreement including but not limited to TCDA Board approval and land use approval as provided in Sections 3.6.1 and 3.6.2. 12.11 Survival Any covenant or condition set forth 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,will survive the expiration or earlier termination of this Agreement and will remain fully enforceable thereafter. 12.12 Partial Invalid 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, will not be affected thereby, and each provision of this Page 21—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution Agreement will 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 Parties will renegotiate in good faith terms and provisions that will effectuate the spirit and intent of the Parties' agreement herein. 12.13 Calculation of Time. Unless referred to as Business Days,all periods of time will include Saturdays, Sundays, and Legal Holidays. However, if the last day of any period falls on a Saturday, Sunday, or legal holiday,then the period will be extended to include the next day which is not a Saturday, Sunday, or Legal Holiday. "Business Days"will mean Monday through Friday, and"Legal Holiday" will mean any holiday observed by the State of Oregon. 12.14 Headings, Table of Contents. The Section headings and Table of Contents are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 12.15 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, and such counterpart will constitute one and the same instrument. 12.16 Legal Purpose. TCDA and Developer each agree that it will use its interest in the Project solely for lawful purposes. 12.17 Amendments. This Agreement may be modified only by a writing signed by the Parties. 12.18 Approvals. 12.18.1 Where this Agreement requires the approval(s) of TCDA,TCDA will approve or disapprove within fourteen(14)days after receipt of the material to be approved, except where a longer or shorter period is specifically provided in this Agreement, and except where the approval requires action by the TCDA Board, and in that case, the approval period will be forty- five(45)days. Failure by TCDA to approve or disapprove within the applicable period will be deemed approval. Any disapproval will state in writing the reasons for such disapproval. Staff approvals will not be unreasonably withheld or conditioned, except where rights of approval are expressly reserved to TCDA's sole discretion in this Agreement. 12..18.2 Where this Agreement requires the consent or approval of Developer, Developer will approve or disapprove within fourteen(14)days after receipt of the material to be approved, except when a longer period is specifically provided in this Agreement.Failure by Developer to approve or disapprove within such period will be deemed approval. Any disapproval will state the reasons for such disapproval. Approvals will not be unreasonably Page 22—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution withheld or conditioned, except where rights of approval are expressly reserved to Developer's sole discretion. 12.19 Attorneys' Fees. If a suit,action, or other proceeding of any nature whatsoever(including any proceeding under the U.S. Bankruptcy Code) is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights or obligations hereunder, the prevailing Party will be entitled to recover its attorney,paralegal, accountant, and other expert fees and all 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. 12.20 Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter covered by this Agreement. 12.21 Interpretation of Agreement; Status of Parties. This Agreement is the result of arm's-length negotiations between the Parties and will not be construed against any Party by reason of its preparation of this Agreement. Nothing contained in this Agreement will be construed as creating the relationship of principal and agent,partners, joint venturers, or any other similar relationship between the Parties. 12.22 Future Assurances. Each of the Parties will promptly execute and deliver such additional documents and will do such acts that are reasonably necessary, in connection with the performance of their respective obligations under this Agreement according to the Project Schedule to carry out the intent of this Agreement. 12.23 Mutual Representations. The Parties each warrant and represent to the other that this Agreement constitutes a legal, valid, and binding obligation of that Party. Without limiting the generality of the foregoing, each Party represents that its governing authority and, in the case of TCDA, its Board, has authorized the execution, delivery, and performance of this Agreement by it. The individuals executing this Agreement warrant that they have full authority to execute this Agreement on behalf of the entity for whom they purport to be acting. Each Party represents to the other that neither the execution and delivery of the Agreement, nor the consummation of the transactions contemplated hereby will: violate any constitution, statute,regulation, rule, injunction,judgment, order, decree,ruling, charge, or other restriction of any government, government agency, or court to which it is subject or any provision of its charter or bylaws; or conflict with, result in a breach of, or constitute a breach under any other agreement to which it is a party or by which it is bound. No Party needs to give any notice to,make any filing with, or obtain the consent of any other entity or person to consummate the transaction contemplated by this Agreement. Page 23—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution 12.24 Exhibits. The following Exhibits attached to this Agreement are an integral part of this Agreement and are fully incorporated into this Agreement where they are referenced in the text of this Agreement: Exhibit A—Description of Property Exhibit B—Concept Plan 12.25 Assignment. TCDA has entered into this Agreement based on the reputation and qualifications of Developer. Developer will not assign or otherwise transfer any interest in this Agreement without the prior written approval of TCDA which approval shall not be unreasonably withheld provided the transferee has comparable capabilities and financial resources. For purposes of this Agreement, the terms "assignment or transfer"will not include any mortgage or other normal and customary financing obtained by Developer nor will it include assignment to a partnership,joint venture or similar entity of which Developer is a member provided that such assignment will not be a novation or in any way excuse or diminish Developer's obligations and responsibilities to TCDA provided for herein. \ This Agreement will bind each Party's respective successors and assigns. 12.26 Force Majeure. Neither Party will have liability to the other on account of the following acts(each of which is an "Excused Delay" and jointly all of which are "Excused Delays")"which will include: (a)the inability to fulfill, or delay in fulfilling, any obligations under this Lease by reason of strike, lockout, other labor trouble, dispute or disturbance; (b)governmental regulation, moratorium, action,preemption or priorities or other controls; (c) shortages of fuel, supplies or labor; (d)or the discovery of previously unknown environmental conditions related to conditions or contamination existing on the property prior to conveyance of the property to Developer; or(e) for any other reason,whether similar or dissimilar to the above, or for act of God beyond a Party's reasonable control. If this Agreement specifies a period for performance of an obligation of a Party(including, without limitation, the Project Schedule), that period will be extended by the period of any delay in the Party's performance caused by any of the events of Excused Delay described herein. 12.27 Statutory Disclaimer. "THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES,AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY,UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, Page 24—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution OREGON LAWS 2009,AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS,IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009,AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010." IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first set forth above. TCDA: TCDA OF TIGARD By: Printed Name: Its: Date: Approved as to form: TCDA Attorney By: Printed Name: Its: Developer: AVA TIGARD DEVELOPMENT,LLC, an Oregon limited liability company By: Printed Name: Its: Date: Page 25—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution EXHIBIT A Description of Property Real property in the County of Washington, State of Oregon,described as follows: PARCELI: BEGINNING AT AN IRON PIPE MARKING THE NORTHWEST CORNER OF THE SOUTH 1/2 OF THE JOHN HICKLIN DONATION LAND CLAIM NO. 37 IN TOWNSHIP 2 SOUTH, RANGE 1 WEST, WILLAMETTE MERIDIAN, WASHINGTON COUNTY, OREGON. AND RUNNING THENCE SOUTH 4500' WEST ON LINE BETWEEN THE SAID JOHN HICKLIN DONATION LAND CLAIM AND THE GEORGE RICHARDSON DONATION LAND CLAIM,A DISTANCE OF 1807.1 FEET TO A POINT; THENCE SOUTH 45°00' EAST ALONG THE EASTERLY LINE OF THAT CERTAIN TRACT OF LAND CONVEYED TO EMIL A. AND OLIVIA T.JOHNSON BY DEED AS RECORDED IN BOOK 118 PAGE 0069, WASHINGTON COUNTY, DEED RECORDS A DISTANCE OF 131.0 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT; THENCE FROM THE DESCRIBED POINT OF BEGINNING SOUTH 45°00' EAST ALONG THE EASTERLY LINE OF SAID JOHNSON TRACT A DISTANCE OF 93.0 FEET TO A POINT ON THE NORTHERLY LINE OF THE PACIFIC HIGHWAY; THENCE FOLLOWING SAID NORTHERLY LINE OF THE PACIFIC HIGHWAY ON A 5730.0 FOOT RADIUS CURVE TO THE RIGHT(THE LONG CHORD OF WHICH BEARS SOUTH 57°31'WEST 23.5 FEET) 23.5 FEET TO A POINT MARKED BY AN IRON HIGHWAY RIGHT OF WAY MARKER; THENCE SOUTH 57°38' WEST ALONG SAID RIGHT OF WAY LINE 145.0 FEET TO A POINT IN THE CENTER OF FANNO CREEK; THENCE NORTH 36°30'WEST IN THE CENTER OF FANNO CREEK A DISTANCE OF 78.6 FEET TO A POINT; THENCE NORTH 55°52' WEST IN THE CENTER OF FANNO CREEK A DISTANCE OF 6.1 FEET TO A POINT; THENCE NORTH 55°09' EAST ALONG THE HIGHWAY RIGHT OF WAY LINE A DISTANCE OF 156.4 FEET TO THE POINT OF BEGINNING. PARCEL II: BEGINNING AT AN IRON PIPE MARKING THE NORTHEAST CORNER OF THE SOUTH 1/2 OF THE JOHN HICKLIN DONATION LAND CLAIM IN TOWNSHIP 2 SOUTH, RANGE 1 WEST,WILLAMETTE MERIDIAN, WASHINGTON COUNTY,OREGON. AND RUNNING THENCE SOUTH 45°18' WEST ALONG THE DONATION LAND CLAIM LINE 1814.5 FEET TO THE MOST WESTERLY CORNER OF LOT 15 OF ELECTRIC ADDITION TO TIGARDVILLE ( PLAT BOOK 2, PAGE 0042),A DULY RECORDED SUBDIVISION IN WASHINGTON COUNTY, OREGON; THENCE SOUTH 44°47' EAST ON THE SOUTHWESTERLY LINE OF SAID LOT 15 AND THE NORTHEASTERLY LINE OF A TRACT OF LAND CONVEYED TO EMIL JOHNSON BY DEED AS RECORDED IN BOOK 118 PAGE 0069 OF WASHINGTON COUNTY DEED RECORDS, 131.0 FEET TO THE WESTERLY CORNER OF THE SOUTHEASTERLY 1/2 OF SAID LOT 15 AND THE TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT; THENCE FROM THE DESCRIBED POINT OF BEGINNING SOUTH 44°47' EAST ON SAID SOUTHWESTERLY LINE OF LOT 15 A DISTANCE OF 96.0 FEET TO THE NORTHERLY LINE OF THE OLD TAYLORS FERRY ROAD; Page 26—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution THENCE NORTH 60°12' EAST ON SAID ROAD LINE 22.2 FEET TO AN IRON; THENCE NORTH 36°10'WEST 48.3 FEET TO AN IRON; THENCE NORTH 60°12' EAST 40.1 FEET TO AN IRON; THENCE NORTH 36°10' WEST 65.0 FEET TO AN IRON ON THE EASTERLY BOUNDARY OF THE STATE HIGHWAY; THENCE SOUTH 45°14'WEST ALONG SAID LINE, 77.24 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION DEDICATED TO THE CITY OF TIGARD FOR ROAD AND STREET PURPOSES BY DEDICATION DEED RECORDED SEPTEMBER 13, 2012 AS RECORDING NO. 2012-076047. The above-description being subject to change to reflect the approved development footprint,the Fanno Creek riparian area and the property line adjustment as provided for in the Agreement. Page 27—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution EXHIBIT B Concept Plan(See Attached) Page 28—Development and Disposition Agreement—Ava Roasteria 4/29/18 Final Exhibit A to Resolution Page 29—Development and Disposition Agreement—Ava Roasted Te D.4 SUPPLEMENTAL PACKET FOR ­- - S�- a°lS EXHIBIT B (DATE OF MEETING) ROOM"�+�.,, _ a s 1� � "now_ [� j a 7 P 00 w' e g-5 0j t".': � 1� r i %VA x E t