2011-028635 Washington County,Oregon
04/14/201104:22:33 PM 2011-028636
D-IRUL Cnt■1 Stn■8 J GREGORY
�. $20.00$6,00$11.00$18.00-Total a$81.00
p After recording, return to:
City of Tigard—Records Division
13125 SW
1 T gard, OR 97 23d I,Richard Hober1111111111111111111111111111111111111111111111
169000t
24201100286380040040
ment and
Taxation and Ex•Offlclo County Clerk for of ashington
County,Oregon,do hereby certify that the within
NO CHANGE IN TAX STATEMENT Instrument of writing was received re orded In the
book of records of Bald cou
Richard Hobernlcht,Olrector of Assessment and
Taxation,Ex•Off clO County Clark
RESTRICTIVE COVENANT
(FUTURE STREET IMPROVEMENTS)
THIS AGREEMENT is entered into this 7 day of AI-4I21 1 , 2011, by the City of Tigard, a
Municipal Corporation of Washington County, Oregon, ("CITY"), and Hawthorne Block, LLC, an Oregon
Limited Liability Company("OWNER"). _
RECITALS
WHEREAS OWNER is the Owner of record of Property covered by this Agreement as shown in Section
1 below, and
WHEREAS OWNER has received approval from the City for development of the property, as set forth in
Land Use Case No. SUB2006-00010 dated May 16, 2007 Effective Date of Land Use Approval; and
WHEREAS Chapter 18.810 of the TMC (Tigard Municipal Code)contains certain conditions applicable to
street improvements, and issuance of permits is conditioned on OWNER'S compliance with the TMC;
and
WHEREAS OWNER wishes to mitigate the impacts of the proposed development; and
WHEREAS parties wish to fulfill the requirements of Chapter 18.810.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises, covenants and undertakings, and
the issuance of a building permit in advance of OWNER constructing improvements required by the TMC,
the parties agree as follows:
Section 1: The real property subject to this Agreement is described as follows:
Lot Numbers 1 -27 of White Oak Village Subdivision
Plat No. _N'JA .
Recorded as Document No.4 O f /O JWashington County, Oregon.
OWNER agrees that the terms of this Agreement shall bind the OWNER as well as its
heirs, successors in interest or assigns.
Section 2: The improvements covered by this Agreement are as follows:
Highway 99W
Partial street improvements along the project's Highway 99W frontage including, but not
limited to, pavement widening, curb, gutter, sidewalk, planter strip, street trees, street
lights and storm sewer.
Restrictive Covenant(Future Street Improvements)—White Oak Village Subdivision Page 1 of 4
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Section 3: This Agreement shall be in full force and effect from the date of its execution until the
improvements referred to in Section 2 are constructed in accordance with CITY standards
in effect at the time of construction.
Section 4: CITY agrees that the improvements listed in Section 2 will only be required as a result of
any one of the following events:
(1) when the improvements are part of a larger project to be financed or paid for by the
formation of a Local Improvement District,
(2) when the improvements are part of a larger public project to be financed or paid for
in whole or in part by CITY or other public agency,
(3) when the improvements are part of a larger project to be constructed by a third
party and involves the sharing of design and/or construction expenses by the third
party owner(s)of property in addition to the property described in Section 1, or
(4) when construction of the improvements are deemed to be appropriate by the City
Engineer in conjunction with construction of improvements by others adjacent to
the improvements described in Section 2.
In addition to this Agreement, OWNER'S obligation to share design and/or construction
expenses may arise by application of the Reimbursement District Ordinance; Chapter
13.09, TMC, or any similar ordinance or law providing a process whereby such expenses
are distributed among benefited properties.
The level of participation shall be $10,000, which shall be allocated on a pro-rata basis
over all of the lots. This amount is the estimated cost of the work based on 2011 dollars
and shall be applied to design and construction costs for the improvements. Any future
participation shall use this amount as the present value with adjustments for inflation using
the Engineering News Record construction cost index (currently 8998.02) to the time of
participation.
Section 5: OWNER agrees to sign any and all waivers, petitions, consents and all other documents
necessary to obtain the above listed applicable improvements under any improvement act
or proceeding of the State of Oregon, Washington County, or the CITY as may be
proposed or adopted and to waive all right to remonstrate against the improvements listed
in Section 2 above, submitted either alone or in conjunction with other improvements
described in Section 4, as may be proposed. OWNER agrees that in lieu of any other
document, CITY may treat this Agreement as a waiver of remonstrance on behalf of the
property described in Section 1 against formation of such a Local Improvement District.
OWNER covenants and agrees that the improvements described in Section 2 will specially
benefit OWNER'S property as described in Section 1.
Section 6: If CITY decides to form a Local Improvement District as a mechanism for the installation of
improvements listed in Section 2, then OWNER shall retain the right to protest only the
amount or the manner of spreading the assessment, but not the formation of such district.
Section 7: CITY acknowledges that OWNER'S execution and performance of the terms of this
Agreement constitutes compliance with the requirements of TMC Chapter 18.810.
Section 8: OWNER agrees that if CITY causes the improvements listed in Section 2 to be
constructed, or part of such improvements without regard to the source of funds for such
project, but not as part of a Local Improvement District, then CITY will charge to OWNER
Restrictive Covenant(Future Street Improvements)-White Oak Village Subdivision Page 2 of 4
T
and OWNER will promptly pay OWNER'S share of the cost of such improvements, as
calculated in accordance with Section 4 above. The parties intend OWNER to share in
the cost of improvements even though actual construction is undertaken and performed by
some third party, so long as the improvements, listed in Section 2, are included within the
project.
(1) Except as otherwise provided in subsection (2) of this section, prior to construction
of such improvements under this section, OWNER shall be provided not less than
six (6) months written notice by first class mail that the project will be built. The
notice shall advise OWNER that OWNER will share in the cost of such
improvements and provide OWNER with an estimate of the total project cost as
well as an estimate of OWNER'S share of the costs. Failure to provide this "six
month" notice in advance of construction shall not nullify OWNER'S obligation to
pay, but shall only extend the payment due date by the amount of time less than
six months that notice was given, but not more than six months: Upon completion
of improvements pursuant to this Section, CITY shall provide written notice to
OWNER of OWNER'S share of the actual cost of the improvements. OWNER shall
pay OWNER's share of the actual costs, or the estimated costs as calculated in
accordance with Section 4, whichever is less, within sixty (60) days. Where the
improvements listed in Section 2 are constructed by a third party, who seeks
reimbursement in accordance with the Reimbursement District Ordinance, Chapter
13.09, TMC, or a similar ordinance, then the terms and procedures of the
ordinances shall apply in lieu of the provisions in subsection (1)of this section.
Section 9: OWNER or OWNER's successors may elect at any time to pay the estimated costs,
updated to date of payment, to the City as their contribution to that future improvement.
Payment under this section shall discharge all of OWNER's obligations under this
Agreement. Any funds deposited with the City will be used to fund the improvements along
the project frontage
Section 10: CITY and OWNER intend that all terms of this Agreement shall be covenants, conditions,
and restrictions running with the title to the property covered by this Agreement, and shall
be binding upon parties to this Agreement, their heirs, executors, assigns, administrators,
and successors and shall be construed to be a benefit and a burden upon the property
described in Section 1. The parties agree the CITY may, for purposes of recovering the
cost of improvements described in Section 2, levy an assessment against the property,
described in Section 1, and may enforce payment of such assessment in the manner
provided in ORS Chapter 223 or the general laws of the State of Oregon.
Section 11: Promptly after its execution by the parties, this Agreement shall be recorded in the records
of Washington County to provide public notice and especially notice to future owners of
property, described in Section 1 of the conditions, covenants and restrictions against the
title to the property imposed by this Agreement.
Section 12: CITY may enforce the terms of this Agreement in any court of competent jurisdiction. In
addition to any other legal remedies, OWNER'S failure or refusal to comply with this
Agreement shall constitute a violation of the TMC and the rights, remedies, and penalties
provided in the TMC may also be enforced.
Section 13: If suit or action is instituted to enforce a right guaranteed in this agreement, the prevailing
party shall be entitled to, in addition to the statutory costs and disbursements, a
reasonable attorney's fee to be fixed by the trial and appellate courts respectively.
Restrictive Covenant(Future Street Improvements)—White Oak Village Subdivision Page 3 of 4
t
Section 14: The parties agree that if any term of provision of this agreement is declared by a court to
be illegal or in conflict with any law, the validity of the remaining terms and provisions shall
not be affected, so long as this agreement continues to reflect the intent of the parties. The
parties shall negotiate an equitable adjustment of this agreement so that the purposes of
this agreement are affected.
Acknowledgment of OWNER'S signature(s) must be notarized. Where the OWNER is a corporation, it
has caused its name to be signed by resolution or official approval of its board of directors.
OWNER(S):
HAWTHORNE BLOCK, LLC
Name of Company tignature
621 SW Alder Street, Suite 605
Address Title
Portland, OR 97205
Signature
Tax Statement Mailing Address (ff drfferent from above) Title
STATE OF OREGON )
)ss.
�on
County of l '
This i strument was acknowledged before me on crr 11,All by: /2-
as of f/4,✓?�t,2ive� c ec ZL t - ,
and authorized to sign on behalf of OWNER..
OFFICIAL SEAL
DANIEL R MARTIN s na
NOTARY PUBLIC-OREGON Nota rY 9ture
COMMISSION NO.452075 My Commission Expires: U v3 i
MY COMMISSION EXPIRES OCTOBER 03,2014
Accepted on behalf of the City of Tigard this 7 day of , 20 V
City Engineer
Restrictive Covenant(Future Street Improvements)—White Oak Village Subdivision Page 4 of 4