2001-108487 STATE OF OREGON
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Rect:
290579 37.00
10/24/2001 02:03: 11pm
RESTRICTIVE COVENANT
(FUTURE STREET IMPROVEMENTS)
THIS AGREEMENT is entered into this �l day ofFew, 2001, by the City Tigard, a
Municipal Corporation of Washington County, Oregon, ("CITY"), and
a corporation authorized to do business in the State of Oregon, (" WNER").
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 of a development on the Property from the CITY, as set forth
in MLP 2000-00005 dated August 28, 2000, 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.
IN CONSIDERATION of the mutual promises, convenants 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:
PARTlTioN PkAT Vd. 2001-068
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:
SW Inez Street
Restrictive Covenant (Future Street Improvements) V Page 1 of 4
Half street improvement to a local residential street standard to include pavement
widening to provide a total of 16 feet from centerline to curb, concrete curb, concrete sidewalk, street
trees, streetlights, storm drainage and underground utilities.
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.
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
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
Restrictive Covenant (Future Street Improvements) c2. Page 2 of 4
Revision date:1/1/01
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. If OWNER's share of the cost of
the improvements is $10,000 or more, the owner may elect to pay the City in 10
equal annual installments, with the first installment due within 60 days of the
notice. The installment option shall be available only if the OWNER provides
written notice and the first payment within 60 days of the notice. If the installment
option is chosen, the unpaid amounts shall bear interest at the then legal rate of
interest. Interest on overdue payments shall bear interest at the rate of one and
one-half(1 Y2%) per month from the date the payment is due until paid.
(2) 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: At any time prior to the events listed in Section 4, OWNER or OWNER's successors may
pay to the CITY an amount determined by the CITY to be OWNER's share of the
anticipated cost of the future improvements. Payment under this section shall discharge
all of OWNER's obligations under this Agreement. City shall use the funds received under
this section solely to pay for the costs of the improvements.
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
Restrictive Covenant (Future Street Improvements) 3 Page 3 of 4
Revision date: 1/1101
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.
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 effected.
OW ER(S):
%gnat re Signature
t
Name Print or Type) Name (Print or Type)
Title (Print or Type) Title (Print or Type)
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.
STATE OF OREGON )
County of wA7:'-1w1.1A)47_1J )
On this 1;7- day _1�h2Lrf 1-�, before me a Notary Public,
2 #4 5c ml; 4- SCrrminT-- personally appeared and acknowledged that
the foregoing instrument to be their voluntary act and deed.
Before me: --"
OFFICIAL SEAL otary Public for Oregon
BRUCE E WALSH
NOTARY PUBLIC-OREGON
COMMISSION NO.308976 My commission expires: Z �°y—
MY COMMISSION EXPIRES FEB,21, 002
Z►�(
Accepted on behalf of the City of Tigard this 16_d& day of u W
City Engineer
Restrictive Covenant (Future Street Improvements) Page 4 of 4
Revision date: 111t01