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2008-085871 ~ Lukar Court ~ Ascension Street Washinaton County,Oregon 2008_085871 1011 P8 11:35:06 AM 121-11*04WO Cnt=1 Stn=6 J GREGORY $30.00$5.00$11.00-Total=$46.00 =,After recording, return to: City of Tigard - Records Division 13125 SW Hall Blvd. 01298630200800858710060065 Tigard OR 97223 I,Richard Hobernicht,Director of Assessment and S � Taxation and Ex-Officio County Clerk for Washington * `+ County,Oregon,do hereby cert) that the within 9 Y fY instrument of writing was received and recorded in the NO CHANGE IN TAX STATEMENT book of records of said cou Richard Hobernicht,Director of Assessment and Taxation,Ex-Officio County Clerk - RESTRICTIVE COVENANT (FUTURE STREET IMPROVEMENTS) THIS AGREEMENT is entered into this `1 day of `� � 'Qu` 20 0 by the City of Tigard, a Municipal Corporation of Washington County, Oregon, ("CITY"), and J e-(A i2 _��.a_ � (' a w�:S1„1- ("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 of a development on the Property from the CITY, as set forth in Land Use Case No. MLP2007-00011 dated 10/19/07 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. 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: Parcels 1 & 2 of Partition Plat No. d f -7 6 1 , Recorded as Document No. C1cy3o 8-!5-8 7 0 , Washington 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: SW Lukar Court Half-street improvements including, but not limited to, 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. Restrictive Covenant(Future Street Improvements) Page 1 of 4 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 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 Restrictive Covenant(Future Street Improvements) Page 2 of 4 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 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 Restrictive Covenant(Future Street Improvements) Page 3 of 4 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. OWNER6 1 Signature Signatu Name (Print or Type) Name (Print or Ty ) Mailing Address City, State, Zip re _ C\ K r STATE OF OREGON ) County of Benton ) 29th September On this day 2008 before me a Notary Public, Cathy Wright personally appeared and acknowledged that the foregoing instrument to be their voluntary act and deed. l \'Z�Ll�P ' Before OR4IAL SEAL N to l� for Oregon UNDA LARSEN KELLER 4/5/2012 NOIARYPUBLIC-OREGON My commission expires: COMMISSION NO.427074 MY COMMISSION EXPIRES APRIL 5,2012 Accepted on behalf of the City of Tigard this day of ho),a.-d 20 OR 0"-0 I0 - City Engineer iaeng\bnanrVemplateslstreet improvement agml•restrlctive covenant.Aol Restrictive Covenant(Future Street Improvements) OFFICIAL Page 4 of 4 SHIRLEY L TREAT NOTARY PUBLIC•OREGON ___ MY VMES APFNL 4 Mi- INDIVIDUAL ACKNOWLEDGMENT State/ ///�� J�}� On this the dayof Commonwealth of 0)& Day Month Year Count of (t)►g S (1�� '4 ss before me, E-�"1 y Name of Notary Public the undersigned Notary Public, personally appeared Name of Signer(s) ..-,-..�.._.._a M El personally known to me Oflik s�+01611 �T ►T ❑proved to me on the basis of satisfactory evidence IRLENOTARY PUBLIC-OREGON COMMISSION NO.416777 to be the person(s) whose name(s) is/are subscribed MY COM MISSION EXPIRES APR&2S,2011 to the within instrument, and acknowledged that he/she/they executed it. ) WITNESS my hand and official seal. r' Signature of Notary Public OPTIONAL Though the information in this section is not required by law, it may prove valuable to . . .•.- persons relying on the document and could prevent fraudulent removal and Top of thumb here Top of thumb here reattachment of this form to another document. i Description of Attached Document Title or Type of Document: I Document Date: Number of Pages: Signer(s) Other Than Named Above: ©1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402-www.nationalnotary.org Item No.5170 Reorder:Call Toll-Free 1-800-876-6827 r CITY of TIGARD � -� SONG i fEMLP2007-00011 VICINITY MAP C ) I I I i y , I I { I WALNUT-LN ---- I I w HORIZON BLVD ---- -- K - -- A C MTA D 'xt N Ff I I I I j I Tigan Area Map �T I �WI