2001-028931 STATE OF OREGON
SS
County of Washington
After recording, return to:
I, Jerry,"--'i6sM,,Dirr of Assess-
ment and ttbnndx Offfao County
City of Tigard—Records Division Clerk for,sa�t#.�;od��"g io`�et 4 ceertify that
r
13125 SW Hall Blvd. the withjfrpt u at}g was received
Y� and re6i5iq d i #�2iok f reeor s"of said
\ Tigard, OR 97223 county4``-�' _ r .��.�
IN
cc: Tigard-Tualatin School District 23J Tx'!
Attn.: Superintendent ]
Jrr � �t111S0�i, perector of
13137 S.W. Pacific Highway Abse _'rerrt ansJ-Taxation, Ex-
Tigard, Oregon 97223 0 6wty i;lerk
Doc 2001028931
Rect: 275873 67.00
cc: LOWE'S HIW, Inc. 04/05/2001 11:47: 06am
1530 Faraday Avenue, Suite 140 WASHINGTON COUNTY
Carlsbad, CA 92008 \ III I I I II V II I I II I VI II I II II I II I I III t - -
Attn.: Tom Maddox
RESTRICTIVE COVENANT
(FUTURE STREET IMPROVEMENTS)
THIS AGREEMENT is entered into this 22 day of S61''T: , 2000, by the City of Tigard, a
Municipal Corporation of Washington County, Oregon, ("CITY"), the Tigard-Tualatin School District
23J, ("SCHOOL DISTRICT"), and Lowe's HIW, Inc., a Washington corporation, ("LOWE'S"),
authorized to do business in the State of Oregon, which corporation was formerly named Eagle Hardware
& Garden, Inc. ("EAGLE"). The CITY, SCHOOL DISTRICT and LOWE'S shall be referred to
collectively herein as the "PARTIES".
RECITALS
WHEREAS SCHOOL DISTRICT is the Owner of record of certain Property described in Section IA
below, which Property is the subject of two December 1998 Ground Leases, and which leased premises
are covered by this Agreement , and
WHEREAS LOWE'S is the current Ground Lessee under both Ground Leases dated December 1998 of
the Property owned by SCHOOL DISTRICT described in Section IA below, and which leased premises
are covered by this Agreement as described, and
WHEREAS LOWE'S is the current Owner of record of certain Property covered by this Agreement as
described in Section 1 B below, and
WHEREAS LOWE'S received approval of a development on the Property described in Sections I and
1B from the CITY, as set forth in SDR 98-00008 dated November 2, 1998, 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 LOWE'S' compliance with the TMC,
and
WHEREAS the parties wish to mitigate the impacts of the proposed development, and
WHEREAS the parties wish to fulfill the requirements of Chapter 18.810.
Restrictive Covenant(Future Street Improvements) / ,/0 Page 1 )f F
i
IN CONSIDERATION of the mutual promises, convenants and undertakings, and the issuance of
a building permit in advance of LOWE'S constructing improvements required by the TMC, the parties
agree as follows:
Section IA: The real property that is leased by LOWE'S , the Ground Lease Property, under the terms
of two separate December 1998 Ground Leases with the Tigard-Tualatin School District
23J and which property is subject to this Agreement, is depicted in the attached Exhibit
"A" and legally described in the attached Exhibit"A-111.
Section 1B: The real property that is owned by LOWE'S, the LOWE'S Property, and which property is
subject to this Agreement is depicted in the attached Exhibit "B' , and is legally described
as follows:
LOTS 24, 25, 26, 29, 30 AND 31 OF HERMOSA PARK, IN THE CITY OF TIGARD, COUNTY
OF WASHINGTON AND STATE OF OREGON. SUBJECT TO: STATUTORY POWERS
AND ASSESSMENTS OF UNIFIED SEWERAGE AGENCY. PREMISES ARE WITHIN THE
BOUNDARIES OF TUALATIN VALLEY WATER DISTRICT.
Section 2: The improvements covered by this Agreement are as follows:
Future Traffic Signals at SW 72nd Avenue/SW Dartmouth Street and SW 68th
Avenue/SW Dartmouth Street.
LOWE'S agrees to contribute financially its proportionate share toward' the future
signalization of these intersections above-noted. Proportionate costs will be determined in
the future when signalization is proposed, and shall be calculated as specified in Section 8
hereof LOWE'S and SCHOOL DISTRICT further agree that the terms of this Agreement
shall bind its heirs, successors in interest or assigns. Furthermore, LOWE'S shall indemnify
and hold SCHOOL DISTRICT, free and harmless from any liability whatsoever, based or
asserted upon, related to, or. in any way connected with or arising from LOWE'S'
fulfillment of its obligations within this Restrictive Covenant.
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:
when the improvements are part of a larger project to be financed or paid for by the
formation of a Local Improvement District,
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,
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
Restrictive Covenant(Future Street Improvements) C2,_ Page 2
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, LOWE'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: LOWE'S and SCHOOL DISTRICT agree to sign reasonable 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. LOWE'S and SCHOOL
DISTRICT agree that in lieu of any other document, CITY may treat this Agreement as a
waiver of remonstrance on behalf of the properties described in Sections lA and 113,
against formation of such a Local Improvement District. LOWE'S and SCHOOL
DISTRICT covenant and agree that the improvements described in Section 2 will specially
benefit LOWE'S' and SCHOOL DISTRICT'S properties as described in Sections IA and
113.
Section 6: If CITY decides to form a Local Improvement District as a mechanism for the installation
of improvements listed in Section 2, then LOWE'S and SCHOOL DISTRICT 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 agrees that LOWE'S' execution and performance of the terms of this Agreement will
be deemed to be in compliance with the requirements of TMC Chapter 18.810 pertaining to
Street Improvement Requirements, and if LOWE'S complies in every respect with all other
applicable laws of the State of Oregon, Washington County, and of the CITY, then
LOWE'S shall be entitled to issuance of a building permit.
Section 8: LOWE'S 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 LOWE'S
and LOWE'S will promptly pay LOWE'S' share of the cost of such improvements based
on the total area of property included in both Exhibits lA and 1B. SCHOOL DISTRICT
shall have no obligation to contribute financially or share in the costs of such
improvements. LOWE'S' share will be determined by CITY, spreading the cost of the
public improvement to the specially benefited properties. The parties intend LOWE'S 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, LOWE'S 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 LOWE'S that LOWE'S will share in the cost of such
Restrictive Covenant (Future Street Improvements) Page 3
improvements and provide LOWE'S with an estimate of the total project cost as
well as an estimate of LOWE'S' share of the costs. Failure to provide this "six
month" notice in advance of construction shall not nullify LOWE'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
LOWE'S of LOWE'S' share of the actual cost of the improvements and LOWE'S
shall pay LOWE'S' share within sixty (60) days. If LOWE'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 LOWE'S 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 %%)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, LOWE'S or LOWE'S successors may
pay to the CITY an amount determined by the CITY to be LOWE'S' share of the
anticipated cost of the future improvements. Payment under this section shall discharge all
of LOWE'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, SCHOOL DISTRICT and LOWE'S intend that all terms of this Agreement shall be
covenants, conditions, and restrictions running with property described in Sections 1A and
1B, and that this Agreement shall be binding upon the 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. The CITY 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
the property described of the conditions, covenants and restrictions against the title to the
property as it is 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, LOWE'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) Page 4
Section 14: If any provision or part of the agreement is determined by a court to be invalid or
unenforceable for any reason, then such part shall be severed from the agreement and the
remainder shall remain fully enforceable.
LOWE'S:
LOWE'S HIW, INC., a Washington corporation
Signature
Name (Print MiTQWJ Shelton (�
Senior Vice President
Title (Print or Type) 1"
Acknowledgment of LOWE'S' signature(s) must be notarized. As LOWE'S is a corporation, it has caused
its name to be signed by resolution or official approval of its board of directors.
STATE OF NORTH CAROLINA)
County of Wilkes)
On this day of 2000, before me a Notary Public,
Z>&V► C• Sl t4c� personally appeared and acknowledged the
foregoing instrument to be their voluntary act and deed.
"®Ff=1CIAL SEAL" Before me: ci�AJA� lac�l"
Notary Public,North Carolina Notary Public for North Ca olina
County of Wilkes
Sherry Luckey
'w M Commission Ex it s 1/25/2005
My commission expires: D/
SCHOOL DISTRICT:
TIGARD TU IN SCHO IS CT 23J
STr-V LDc>J
Name (Print or Type)
�InT61 D6�1 T
By: -
It
Restrictive Covenant (Future Street Improvements) Page 5 of 6
Name (Print or Type)
Its: 5uperirrtet e — el WiipemAN OF 7W
Acknowledgment of SCHOOL DISTRICT'S signatures must be notarized.
STATE OF OREGON)
COUNTY OF WASHINGTON)
On this 7-21 day of SST 2000, before me a Notary Public,
strzycly 14A)D60- personally appeared and acknowledged the
foregoing instrument to be their voluntary act and deed.
Before me: J�*I
OFFICIAL SEAL
CATHERINE P OHM Notary Public for Oregon
NOTARY PUBLIC-OREGON
COMMISSION NO.305346
MYCOMMISSIQNEXPIRESSEPT.30.2001 My commission expires:
STATE OF OREGON)
COUNTY OF WASHINGTON)
On tJ4s day of 2000, before me a Notary Public,
5 personally appeared and acknowledged the
foregoing instrument to be their voluntary act and deed.
Before me:
OFFICIAL SEAL
CATHERINE P OHM Notary Public for Oregon
NOTARY PUBLIC•=OREGON
COMMISSION'N .
305346
MY COMMISSION EXPIRES:SEPT.30.1001 My commission expiresE4
a�G�/•�(J/�d
NO CHANGE IN TAX STATEMENT
\\tig333\usr\depts\eng\pdv-dev\street improvement agreement-non remonstrance.doc
STAccepted on behalf of the City of Tigard this 21 day of FILYL)a!"/ 2001.
City Ygineer
Restrictive Covenant(Future Street Improvements) Page 6 of 6
FTCA
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EXHIBIT "A-1"
PARCEL I:
Being a tract of land in the Southwest one-quarter of the Northeast one-quarter of Section 1, Township 2
South, Range 1 West, of the Willamette Meridian, in the City of Tigard, County of Washington and State of
Oregon, and more particularly described as follows:
Beginning at a found%inch iron rod at the Southwest comer of the plat of HERMOSO PARK; thence along
the South line of said plat South 84°05'36" East 965.40 feet to a % inch iron rod with yellow plastic cap
marked "G&L Land Surveying, Inc."in the Westerly right-of-way line of SW 72nd Avenue, being 20 feet from
the centerline,as said 72nd Avenue is described in that Deed to the State of Oregon in Book 551, page 352,
recorded in Washington County Deed Records;thence along said Westerly line South 02"33'30"West 408.82
feet to a % inch iron rod with yellow plastic cap marked "G & L Land Surveying, Inc."; thence along said
Westerly line North 870 26'30"West 10.00 feet to a point from which a%inch iron rod bears South 05°48'30"
East 0.19 feet; thence continuing along said Westerly line, being 30 feet from centerline, South 02033'30"
West 90.00 feet to a % inch iron rod with yellow plastic cap marked "G & L Land Surveying, Inc."; thence
South 13'52'06"West 203.96 feet to a point from which a 11/2 inch aluminum cap marked O.S.H.D. bears
South 07014'47" East 0.39 feet; thence continuing along said Westerly line, being 70 feet from centerline,
South 02°33'30"West 139.82 feet to a%inch iron rod with yellow plastic cap marked "G&L Land Surveying,
Inc." in the Southerly line of that tract of land described in Deed to Yoneive A. Paulsen in Book 551, page
351, recorded in Washington County Deed Records;thence along the South line of said Paulsen Tract North
88°17'30"West 76.17 feet to a %inch iron rod with yellow plastic cap marked "G & L Land Surveying, Inc."
in the Northeasterly line of Highway 217, being 115.00 feet from centerline,as described in that Deed to the
State of Oregon in Book 551, page 352, recorded in Washington County Deed Records;thence along said
Northeasterly line North 51°00'00"West 15.27 feet to a point from which a found 11/2 inch aluminum cap
marked "O.H.S.D."bears North 22°40'29"East 0.96 feet,at the beginning of a spiral curve to the right having
a long chord bearing North 49°20'51" West 489.75 feet, said curve being offset 115.00 feet from the
centerline of a 500 feet long centerline spiral having an S value of 5°00'and an A value of 0.4;thence along
said spiral curve to a %inch iron rod with yellow plastic cap marked "G &L Land Surveying, Inc.";thence
continuing along said Northeasterly line North 43°50'10"West 360.48 feet to a point from which afound 11/2
inch aluminum cap marked "O.H.S.D."bears North 48049'18"East 0.83 feet;thence along the Northeasterly
line of Highway 217 North 35°13'37"West 288.25 feet to a %inch iron rod with yellow plastic cap marked
"G&L Land Surveying,Inc."in the East line of that tract of land described in Deed Document No. 85011076,
Washington County Deed Records; thence leaving said Highway 217 along said East line North 01°24'24"
East 108.51 feet to the point of beginning.
EXCEPTING THEREFROM the following described property:
A parcel of land lying in the William Graham Donation Land Claim No.39,Township 2 South, Range 1 West,
Willamette Meridian, in the County of Washington and State of Oregon; the said parcel being that portion
of said Donation Land Claim lying Northeasterly of that property designated as Parcel 1 and described in
that Deed to the State of Oregon, by and through its State Highway Commission, recorded August 2, 1966
in Book 610, page 82, Deed Records of Washington County,Westerly of that property designated as Parcel
2 and described in said State of Oregon Deed and Southerly of a line parallel with and 14 meters Northerly
of the "HUNZ" center line which center line is described as follows:
Beginning at Engineer's center line Station "HUNZ" 10+220, said station being 626.383 meters South and
764.706 meters West of the Northeast corner of Section 1, Township 2 South, Range 1 West, of the
Willamette Meridian; thence North 62°03'30" East 32.480 meters;thence on a 110 meter radius curve right
(the long chord of which bears North 77°18'30.5" East 57.867 meters) 58.556 meters; thence South
87°26'29" East 61.449 meters to Engineer's center line Station "HUNZ" 10+352.485.
PARCEL Il:
A parcel of land lying in the William Graham Donation Land Claim No.39,Township 2 South, Range 1 West,
Willamette Meridian, in the County of Washington and State of Oregon; the said parcel being that portion
of said Donation Land Claim lying Northeasterly of that property designated as Parcel 1 and described in
that Deed to the State of Oregon, by and through its State Highway Commission, recorded August 2, 1966
in Book 610, page 82, Deed Records of Washington County,Westerly of that property designated as Parcel
2 and described in said State of Oregon Deed and Southerly of a line parallel with and 14 meters Northerly
of the "HUNZ" center line which center line is described as follows:
Beginning at Engineer's center line Station "HUNZ" 10+220, said station being 626.383 meters South and
764.706 meters West of the Northeast comer of Section 1, Township 2 South, Range 1 West, of the
Willamette Meridian; thence North 62°03'30" East 32.480 meters;thence on a 110 meter radius curve right
(the long chord of which bears North 77018'30.5" East 57.867 meters) 58.556 meters; thence South
87°26'29" East 61.449 meters to Engineer's center line Station "HUNZ" 10+352.485.
EXHIBIT 'B' - HERMOSA PARK
LOWE'S PROPERTY
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