SETTLEMENT AGREEMENT AND RELEASE DEFINITIONS

Transcription

1 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is made and entered into as of the 19 day of March, 2013 ("Effective Date") by and between Project SEED, LLC, Lab Holding LLC, Shaheen Sadeghi (collectively, "Project SEED"), and the City of Portland, acting by and through the Portland Development Commission and the Portland Development Commission (collectively, "PDC"). Project SEED and PDC are collectively referred to as the "Parties." DEFINITIONS As used in this Settlement Agreement and Release: 1. "Centennial Mills" means the 4.75 acre site located at 1362 NW Naito Parkway in Northwest Portland known as Centennial Mills. 2. "Centennial Mills Project" means the potential development of Centennial Mills by Project SEED. 3. "Contractor Agreements" means all contracts entered into by Project SEED or any of its affiliates, including without limitation, its architects, engineers, and contractors, (such as Meyer Sherer & Rockcastle, LTD) concerning or related to the Centennial Mills Project. A list of all Contractor Agreements, agreed to by the Parties, is included in Exhibit 1 attached hereto. 4. "kvqrk Product" means all documents, drawings, photographs, models, or other materials, whether electronic, hard-copy, or in other medium, including, but not limited to, CAD drawings, narratives, or design drawings, generated in connection with the Centennial Mills Project except for any marketing, branding, cultural, or programming items developed by Project SEED. A list of all Work Product, agreed to by the Parties, is included in Exhibit 1 attached hereto. RECITALS 1. Whereas, PDC acquired Centennial Mills before 2007; 2. Whereas, pursuant to Grant Agreement number dated May 5, 2008 ("Grant 1"), PDC granted to Lab Holding LLC $40,000; 3. Whereas, pursuant to a Memorandum of Understanding dated August 18, 2008, as amended (the "MOU"), the Parties explored the potential development of Centennial Mills; 4. Whereas, pursuant to Predevelopment Loan Agreement number dated September 15, 2008 ("Loan 1") and related Predevelopment Promissory Note of Borrower ("Note 1"), PDC loaned Project SEED, LLC $170,142.60;

2 5. Whereas, pursuant to Predevelopment Grant Agreement number dated September 15, 2008 ("Grant 2"), PDC granted Project SEED, LLC $170,142.60; 6. Whereas, pursuant to Predevelopment Loan Agreement number dated January 25, 2010 ("Loan 2") and related Predevelopment Promissory Note of Borrower ("Note 2"), PDC loaned Project SEED, LLC $100,000.00;. Whereas, on November 16, 2011, Project SEED, LLC filed a complaint against PDC in the Circuit Court for the State of Oregon, Multnomah County, alleging various causes of action, which Project SEED, LLC amended on March 26, 2012, in response to which PDC was poised to file counterclaims under the loan and grant agreements against Project SEED, LLC (collectively the "Lawsuit"); 8. Whereas, the Parties now wish to fully and finally resolve all their disputes: AGREEMENT AND RELEASE Now, therefore, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties do hereby expressly agree as follows: 1. Payment Upon receipt of all Work Product and Contractor Agreements as described below, PDC hereby agrees to pay Project SEED Two Hundred Thousand Dollars ($200,000.00) (the "Payment"). 2. Dismissal Upon execution and delivery hereof by PDC to Project SEED and receipt of the entire Payment, Project SEED will file a Notice of Voluntary Dismissal With Prejudice, in the form attached hereto as Exhibit 2, dismissing with prejudice all claims asserted in Project SEED's Amended Complaint, and with the Parties bearing their own attorney fees, costs and expenses. 3. Transfer and Assignment of Contractor Agreements and Work Product To the extent permitted by law and the respective agreements, Project SEED hereby agrees to assign, convey, and transfer, and to cause its affiliates to assign, convey and transfer all their interest, right, title, privilege, benefit, and remedies in, to, and under the Contractor Agreements to PDC. To the extent permitted by law and the related agreements, Project SEED hereby agrees to assign, convey, and transfer, and to cause its affiliates to assign, convey and transfer all their interest, right, title, privilege, benefit, and remedies in or to the Work Product to PDC.

3 PDC does not assume any of Project SEED's obligations under the Contractor Agreements, including, without limitation, any obligation to pay for the work done pursuant thereto, provided however, PDC bears sole responsibility to pay for any work that PDC directs to be performed pursuant to the assigned Contractor Agreements. Project SEED will deliver the Work Product and Contractor Agreements listed in Exhibit 1 as item numbers 1-3, 6-8, 11-13, and to PDC. Each party will bear its own costs and expenses incurred in assigning, delivering, transferring, or obtaining Work Product and the Contractor Agreements. The Parties agree that PDC may contact third parties directly regarding Contractor Agreements or Work Product, or to obtain Work Product directly from those third parties. PDC acknowledges that the Work Product is provided by Project Seed in "As Is" "Where Is" condition and acknowledges that neither Project SEED nor its affiliates have made any warranty or representation with respect to the accuracy, contents, or condition thereof, the suitability of the Work Product for any purpose, or PDC's or any other party's right to use or rely on the Work Product for any purpose, all of which warranties and representations are expressly disclaimed. Nothing in this paragraph is intended to limit the assignments made by this Settlement Agreement or the rights conveyed by those assignments, including PDC's ability to use and rely on the Work Product to the same extent Project SEED could use and rely on that Work Product, provided however, Project SEED bears no responsibility to ensure that the third parties accept and comply with the assignments provided for herein. 4. Limitation on Public Statements and Non-Disparagement Aside from the "Press Statement" attached hereto as Exhibit 3: PDC (including PDC board members) will limit its public statements concerning the Centennial Mills Project, this Settlement Agreement and Release, Project SEED, LLC, Lab Holding LLC, or Mr. Sadeghi to refuting the allegations in Project SEED's Amended Complaint and only in response to specific inquiries about those allegations, or to making disclosures required by law, including disclosures under ORS , et seq. Project SEED will limit its public statements concerning the Centennial Mills Project, this Settlement Agreement and Release and PDC to responding to any public statement made by PDC or its affiliates regarding Project SEED, LLC, Lab Holding LLC, Mr. Sadeghi, the Centennial Mills Project, the allegations in Project SEED's Amended Complaint or this Settlement Agreement and Release (excluding those comments of PDC in the attached Press Statement). The Parties agree not to engage in any public conduct or communication that is intended to disparage, or that could be objectively and reasonably construed as 3

4 disparaging the Centennial Mills Project, this Settlement Agreement and Release or each other. 5. Mutual Release 5.1 Effective upon dismissal of the Lawsuit, receipt of the entire Payment and receipt of the Work Product, as described above, the Parties, on behalf of themselves and their respective present and former agents, employees, officers, directors, commissioners, members, managers, partners, joint venturers, attorneys, insurers, predecessors, successors, and assigns, and each of them absolutely, forever and fully, generally and specifically release and discharge each of the other Parties and their respective present and former agents, employees, officers, directors, commissioners, members, managers, partners, joint venturers, attorneys, insurers, predecessors, successors, and assigns, and each of them, from any and all claims, rights, debts, liabilities, demands, obligations, duties, promises, costs, expenses (including, but not limited to, attorney fees and costs), liens, subrogation rights, indemnification rights, damages, actions, and causes of action, of any kind whatsoever, whether based upon contract, tort, statute, or any other legal or equitable theory of recovery, and whether known or unknown, suspected or unsuspected, fixed or contingent, matured or unmatured, which relate to or arise out of the Centennial Mills Project, including, but not limited to those relating to or arising out of the MOU, Loan 1, Loan 2, Note 1, Note 2, Grant 1, Grant 2, the Contractor Agreements, the Work Product, and any and all claims (including counterclaims) that were brought, or could have been brought, in the Lawsuit, except those arising under this Settlement Agreement and Release. 5.2 Loan 1, Loan 2, Grant 1 and Grant 2 are deemed paid in full. Note 1 and Note 2 are hereby cancelled and deemed paid in full. The original Note 1 and Note 2 shall be delivered to Project SEED at the time Payment is made. 6. No Admission of Liability This Settlement Agreement and Release pertains to disputed claims and does not constitute an admission of liability on the part of any of the Parties, all liability having been denied, at all relevant times, and which continues to be denied. 7. After-Acquired Facts The Parties expressly agree to assume the risk of possible discovery of additional or different facts, and the Parties agree that this Settlement Agreement and Release shall be and remain effective in all respects, regardless of such additional or different discovered facts, or any change in circumstances.

5 8. Advice of Counsel In executing this Settlement Agreement and Release, each Party hereto acknowledges that it has consulted with and had the advice of counsel of its own choosing in negotiations for and preparation of this Settlement Agreement and Release and was fully advised by counsel with respect to all rights which are affected by this Settlement Agreement and Release. Each Party hereto acknowledges that its counsel played a role in drafting this Settlement Agreement and Release and that this Settlement Agreement and Release shall be construed neutrally as if jointly drafted by all Parties, and shall not be construed in favor of or against any Party based on the origin of the language used. The language in all parts of this Settlement Agreement and Release shall in all cases be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. 9. Choice of Law This Settlement Agreement and Release is made and entered into in the State of Oregon and shall in all respects be interpreted, enforced, and governed under the laws of the State of Oregon as if entirely performed within the State or Oregon. Oregon law shall apply without regard to any conflict of laws. 10. Entire Agreement; Modification This Settlement Agreement and Release is the entire agreement between the Parties with respect to the subject matter hereof. It includes all of the terms, promises, and representations made by the Parties, and it supersedes any earlier written or oral agreements between the Parties. Modifications to this Settlement Agreement and Release must be made in writing and signed by both Parties. 11. Authority Each of the Parties represents, warrants, and covenants that it has the power to settle and release fully and completely all of the Released Claims. The Parties have not assigned, subrogated, or in any other way transferred to anyone else any portion of the Released Claims they have or had against each other. 12. Review of Agreement The Parties certify that they have read all of this Settlement Agreement and Release and fully understand all of the same. 13. Cooperation in Implementation The Parties agree to cooperate and diligently perform any further acts, and will execute and deliver any documents, that from time to time may be reasonably necessary or otherwise reasonably required to consummate, evidence, confirm, and/or carry out the intent and provisions of this Settlement Agreement and Release, all without undue delay or expense and without further consideration.

6 14. Counterparts and Facsimile/PDF This Settlement Agreement and Release may be executed in counterparts and via facsimile or electronically via.pdf with the same force and effect as if executed in one complete document. 15. Severability If any clause or provision of this Settlement Agreement and Release is held to be illegal, invalid, or unenforceable under any law applicable to the terms hereof, then the remainder of this Settlement Agreement and Release shall not be affected thereby. 16. Binding Effect This Settlement Agreement and Release shall be binding upon and inure to the benefit of the Parties and their respective representatives, successors, and assigns. Project SEED, LLC Lab Holding LLC Date: Date: d e /, t. /3 Shaheen Sadeghi 6C:WSERSiRRSVAPPDATA:LOCAL1MICROSOFT\WINDOWS\TEMPORA

7 City of Portland, acting by and through Portland Development Commission the, Portland Develo Oment Commission By: Z- / C---. Executive D'rect r Date: 7 ( q i? By:/ Executive Director Approved as to Form: Approved as to Form: Attorney for Portland Development Commission Date: 3 - /*-/ 3 Attorney for Portland Development Commission Date:?

8 Exhibit 1 Agreed List of Contractor Agreements and Work Product No. Consultant/Agency Contractor Agreements/Work Product 1 LAB Team Directory 2 BDS Predevelopment Conference Summary 3 BDS Design Advise Request Response 4 CHRISTIE WHITE Greenway Review Analysis 5 DIRT Design Documents 6 FISHERIES Tech Memo re: River Work 7 FLOWING SOLUTIONS NMFS Memo FLOWING SOLUTIONS Waterside Impact Evaluation Report :8 9 GBS Eco-Charrette Report 10 GBS Leed Assessment (Schematic Design) 11 GBS Proposal 12 GEODESIGN Contract 13 GEODESIGN Preliminary Geotech Report 14 GLUMAC Mechanical & Electrical Narrative (Schematic Design) 15 Greenworks Design Documents 16 HART CROWSER Data Gaps Report 17 HERITAGE CONSULTING GROUP Historic Incentive Memo 18 HERITAGE CONSULTING GROUP Proposal 19 INTEGRA Appraisal 20 KPFF Conceptual Structural Conditions Report 21 KPFF Existing Building Testing Programs 22 KPFF Schematic Design Structural Narrative 12/15/09 23 KPFF Structural Conditions Study 11/15/08 24 KPFF Timber Piling Report 25 KPFF Timber Piling Study 12/16/08

9 KPFF MARITIME MUSEUM MSC MSR MSR MSR MSR Optira/DEA Optira/DEA Otak SERA STANTECH STANTECH Warehouse D. Roof Memo Memo of Interest! Program Technical Consultant Narratives Contract Design documents Due Diligence Mtg Memo Green way Schematic Solutions Laser scan survey/x-rays As-built drawings Bathymetry Survey Land Use Review Memo Environmental Data Gap Report Proposal

10 EXHIBIT 2 IN THE CIRCUIT COURT FOR THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH PROJECT SEED, LLC, an Oregon limited liability company, V. Plaintiff, CITY OF PORTLAND, a municipal corporation acting by and through the Portland Development Commission, and PORTLAND DEVELOPMENT COMMISSION, Defendants. Case No NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE 1 Pursuant to ORCP 54 A(1) Plaintiff hereby voluntarily dismisses this case 2 with prejudice and requests that this Court enter judgment accordingly, with each 3 party to bear its own costs.

11 DATED: March, 2013 Respectfully submitted, 2 By: 3 Renee R. Stineman, OSB # rstineman@dunncarn.ey.com 5 Brian R. Talcott, OSB # btalcott@dunncarney.com 7 Dunn Carney Allen Higgins & Tongue LLP SW Sixth Avenue, Suite Portland OR Phone: Fax: Attorneys for Plaintiff 13 Page 2 NOTICE OF VOLUNTARY DISMISSAL

12 CERTIFICATE OF SERVICE I hereby certify that on March, 2013 I served a true and correct copy of the foregoing NOTICE OF VOLUNTARY DISMISSAL by: E U.S. Postal Service; Facsimile Service Electronic Mail; Arranging for Hand Delivery 111 Federal Express. addressed to the following named persons at their last-known address stated below: James T. McDermott, OSB # imcdermott@ballianik.com Ciaran P. A. Connelly, OSB # cconnelly@balljanik.com BALL JANIK LLP 101 SW Main Street, Suite 1100 Portland, Oregon (phone) (fax) Attorneys for Defendants DATED: March, 2013 DUNN CARNEY ALLEN HIGGINS & TONGUE LLP CERTIFICATE OF SERVICE

13 EXHIBIT 3 PROPOSED PRESS STATEMENT The Portland Development Commission announced today that Project SEED, LLC has agreed to dismiss the remaining portion of its $1.7 million lawsuit regarding the proposed redevelopment of the Centennial Mills site. The PDC had prevailed in the Multnomah County Circuit Court, which validated PDC's use of non-binding memoranda of understanding (MOUs). Project SEED had planned to appeal the Circuit Court's ruling to the Oregon Court of Appeals. To avoid the lengthy appellate process and the legal costs associated with it, and to get immediate access to all of Project SEED's documents and extensive work product concerning the Centennial Mills site, the PDC has agreed to pay $200,000 to Project SEED. PDC Executive Director Patrick Quinton said: "I am pleased that the Court has upheld the validity of PDC's non-binding MOUs and acknowledged our ability to revise a development plan to best serve the citizens of Portland. I am also pleased that the PDC can avoid an appeal and receive Project SEED's extensive work product now. I believe this resolution is in the best interest of Portland's taxpayers. The PDC is eager to move forward with its efforts to redevelop the historic Centennial Mills site." Project SEED President Shaheen Sadeghi said: "We still believe in our project concept. However, we are pleased to settle this case as we would like to move forward and concentrate our efforts on our new projects."