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2012-007304 Washington County,Oregon 2012-007304 02/02/2012 09:36:51 AM D-IPPS Cnt=1 Stn=7 K GRUNIEWALD 25 After recording, return to: $25.00$5.00$11.00$15,00-Total=$56.00 City of Tigard - Records Division 13125 SW Hall Blvd. 1111111111111111111111111111111111111111111111111 Tigard, OR 97223 01671369201200073040050054 I,Richard Hobernlcht,Director of Assessment and Taxation and Ex-Officlo County Clerk for Vtrashington NO CHANGE IN TAX STATEMENT County,Oregon,do hereby certify thetthe within Instrument of writing was recelved a d re orded In the ; book of records of said caupty,. , V Richard Hobernlcht,Director loaf+AAsssessment and Taxation,Ex-Officio County Clerk RESTRICTIVE COVENANT (FUTURE STREET IMPROVEMENTS) THIS AGREEMENT is entered into this --day of Janua r 2012, by the City of Tigard, a Municipal Corporation of Washington County, Oregon, ("CITY"), an Brooks & Pittman Rentals, LLC, an Oregon Limited Liability Company ("OWNER"). Names and Addresses City of Tigard Brooks & Pittman Rentals, LLC 13125 SW Hall Blvd 17255 SW 72nd Avenue Tigard, Oregon 97223 Portland, Oregon 97224 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. SDR2010-00001 and VAR2010-00005 dated July 3, 2010, 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 in Exhibit A, which is attached hereto and hereby made a part of this agreement. OWNER agrees that the terms of this Agreement shall bind the OWNER as well as its heirs, successors in interest or assigns. Restrictive Covenant(Future Street Improvements)-Pittman and Brooks Page 1 of 4 Section 2: The improvements covered by this Agreement are to be performed on the following street: 72"d Avenue, Tigard, Oregon 97224 The improvements required are partial street improvements along the project's SW 72nd Avenue frontage including, but not limited to, right-of-way dedication, pavement widening, curb, gutter, sidewalk, planter strip, street trees, street lights and storm sewer. 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 $26,303.00, which is the estimated cost of the work based on 2010 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 (8676.68 as of July 2010) 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. Restrictive Covenant(Future Street Improvements)—Pittman and Brooks Page 2 of 4 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 and OWNER will promptly pay OWNER'S share of the cost of such improvements. OWNER'S share will be determined by CITY in a manner similar to spreading the cost of a public improvement to specially benefited properties. 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 and OWNER shall pay OWNER'S share 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. Restrictive Covenant(Future Street Improvements)—Pittman and Brooks Page 3 of 4 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. 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): BROOKS & PITTMAN RENTALS, LLC Name of Company R dall C. Brooks Address Member, Brooks & Pitman Rentals, LLC 17255 SW 72nd Avenue Signature Portland, Oregon 97224 M emf3e*– Tax Statement Mailing Address (if different from above) Title OFFICIAL SEAL JANINE MONACO STATE OF OREGON ) ' ` NOTARY PUBLIC-OREGON )ss. COMMISSION NO.425363 County of Washington ) COMMISSION EXPIRES JANUARY 27,2012 This instrument was acknowledged before me on N,4..o-w iA by: aa-jau c . a,-co" as a of eL—IL- a Pity.-, a&--4vL LLC- and authorized to sign on behalf of OWNER.. tary's Signature My Commission Expires: —►z Accepted on behalf of the City of Tigard this day of t2 . gineer Restrictive Covenant (Future Street Improvements)–Pittman and Brooks Page 4 of 4 EXHIBIT A LEGAL DESCRIPTION Description of the tract of land which is the subject of this report: A tract of land situated in the Northwest one-quarter of the Southeast one-quarter of Section 12,Township 2 South, Range 1 West,of the Willamette Meridian,in the County of Washington and State of Oregon,being a part of Lot 45,FANNO CREEK ACRE TRACTS,being more particularly described as follows,to-wit: Beginning at the most Southerly comer of said Lot 45, FANNO CREEK ACRE TRACT,which Southerly comer is the point of intersection of the Westerly right of way line of S.W. 72nd with the Easterly right of way line of the Southern Pacific Transportation Co.'s Tillamook Branch main tract( 100 foot right of way)thence along said Easterly right of way line, North 17 21'West by deed description (Plat computes North 170 42' 10"West) 442.87 feet; thence leaving said railroad Easterly right of way line, North 890 5T 20' East 134.34 feet to said Westerly right of way line of S.W. 72nd Avenue; thence along said Westerly right of way line South 00 02'40" East, plat bearing, (Deed description South 00 00' 16" East) 422.00 fleet to the most Southerly comer of Lot 45 and the place of beginning. EXCEPTING AND RESERVING HEREFROM a 10.00 foot wide easement for road purposes being Westerly,adjacent and contiguous to the Westerly right of way line of said S.W.72nd Avenue,said easement being a portion of that easement to Washington County dated August 6, 1965 and recorded September 15, 1965 in Book 569,Page 134,Deed Records. FURTHER EXCEPTING AND RESERVING HEREFROM a strip taken for road purposes being Westerly,adjacent and contiguous to the Westerly right-of--way line of S.W.72nd Avenue, said strip described in that dedication deed to the public recorded November 10, 1983,fee number 83,41687, Deed Records. FURTHER EXCEPTING THEREFROM that portion lying below a depth of 500 feet,measured vertically,from the contour of the surface of said property.