Correspondence AFTER RECORDING RETURN TO:
City of Tigard
13125 SW Hall Blvd
Tigard OR 97223
NO CHANGE IN TAX STATEMENTS
This space is reserved for recorder's use.
SERVICE CONNECTION DEED OF TRUST
THIS DEED OF TRUST, made this 2nd day of December, 2011, between Gerald
T and Deanna Lyn Nihill, with an address of 11545 SW Walnut Street, as Grantor, Jeff
Bennett, attorney, a Vice President of the Jordan Schrader Ramis, PC, having its office
at Two Centerpointe Drive 6 Floor, Lake Oswego, Oregon, as Trustee, and the City of
Tigard, an Oregon Municipal Corporation, with an address of 13125 SW Hall Boulevard,
Tigard, OR 97223, as Beneficiary.
Grantor hereby grants, bargains, sells, and conveys to Trustee in trust, with
power of sale, the property in Washington County, Oregon, described as follows:
Washington County Deed Doc 97017196; Tax Lot ID:
2S103BA00201
(the "Property "), together with all rights, privileges, permits, licenses, tenements,
hereditaments, rights -of -way, easements and appurtenances of the land, and all right,
title and interest of Grantor in and to any streets, ways, alleys or strips adjoining the
Property or any part thereof, and all other rights thereunto belonging or in any way now
or hereafter appertaining, and the rents, issues, and profits thereof.
Grantor owns the Property which is improved with an existing residential
structure and Grantor desires to connect that structure to the sewer system. Grantor
has voluntarily applied to Beneficiary to connect to the public sewerage system. By its
duly adopted resolutions, Beneficiary has sponsored and finalized a sewer
reimbursement district that has extended sewer service to the Property. As a condition
of connecting a structure to the sewer system, the Beneficiary has imposed a sewer
system development charge. The system development charge is $4,535 for the
privilege of connecting the Property to the Beneficiary's sewerage system.
Grantor desires to make payments of the system development charge over an
extended period of time and the Beneficiary has agreed to such payment plan.
FOR THE PURPOSE OF SECURING PERFORMANCE of each agreement of
Grantor herein and payment of the sum of $4,535 as described above, with interest
thereon according to the terms of a promissory note of even date herewith, payable to
Beneficiary and made by Grantor, the final payment of principal and interest hereof, if
not sooner paid, to be due and payable on January 1, 2022.
The date of maturity of the debt secured by this instrument is the date, stated
above, on which the final installment of the note becomes due and payable.
1. Grantor agrees to pay to Beneficiary the system development charge
which totals $4,535 in not less than twenty (20) equal installments of $261.33 each on
the first day of January and July of each year, together with and in addition to each said
installment, interest on the unpaid principal balance. Payments received shall be
applied first to accrued interest and then to principal.
2. Grantor agrees to protect, preserve, and maintain the Property in good
condition and repair; not to remove or demolish any building or improvement thereon;
and not to commit or permit any waste or cause diminution of the value of the Property.
Beneficiary shall have the right directly or through agents, to inspect the Property at all
reasonable times with or without prior notice to Grantor.
3. Grantor agrees to complete or restore promptly and in good and habitable
condition any building or improvement which may be constructed, damaged, or
destroyed thereon, and pay all costs incurred in such construction or reconstruction
when due.
4. Grantor agrees to comply with all laws, ordinances, regulations,
covenants, conditions, and restrictions affecting the Property; if the Beneficiary so
requests, to join in executing such financing statements pursuant to the Uniform
Commercial Code as the Beneficiary may require and to pay for filing same in the
proper public office or offices, as well as the cost of all lien searches made by filing
officers or searching agencies as may be deemed desirable by the Beneficiary.
5. Grantor agrees to keep the Property free from construction liens and to
pay all taxes, assessments, and other charges that may be levied or assessed upon or
against the Property before any part of such taxes, assessments, and other charges
become past due or delinquent and promptly deliver receipts therefor to Beneficiary;
should the Grantor fail to make payment of any taxes, assessments, liens, or other
charges payable by Grantor, either by direct payment or by providing Beneficiary with
funds with which to make such payment, Beneficiary may, at its option, make payment
thereof, and the amount so paid, with interest at the rate set forth in the note secured
hereby, together with the obligations described in paragraphs 6 and 7 below, shall be
added to and become a part of the debt secured by this Deed of Trust, without waiver of
any rights arising from breach of any of the covenants hereof and for such payments,
with interest as aforesaid, the Property herein before described, as well as the Grantor,
shall be bound to the same extent that they are bound for the payment of the obligation
herein described, and all such payments shall be immediately due and payable without
notice, and the nonpayment thereof shall, at the option of the Beneficiary, render all
sums secured by this Deed of Trust immediately due and payable and constitute a
breach of this Deed of Trust.
6. Grantor agrees to pay all costs, fees, and expenses of this Deed of Trust
including the cost of title search as well as the other costs and expenses of the Trustee
incurred in connection with or in enforcing this obligation and Trustee's fees and
attorney fees actually incurred.
7. Grantor agrees to appear in and defend any action or proceeding
purporting to affect the security rights or powers of Beneficiary or Trustee; and in any
suit, action, or proceeding in which the Beneficiary or Trustee may appear, including
any suit for the foreclosure of this Deed of Trust or any suit or action related to this
instrument, including but not limited to its validity and /or enforceability, to pay all costs
and expenses, including evidence of title and the Beneficiary's or Trustee's attorney
fees; the amount of attorney fees mentioned in this paragraph 7 in all cases shall be
fixed by the trial court and in the event of an appeal from any judgment or decree of the
trial court, Grantor further agrees to pay such sum at the appellate court shall adjudge
reasonable as the Beneficiary's or trustee's attorney fees on such appeal.
8. Grantor agrees to keep this Property and all buildings now or hereafter
erected on the Property insured against loss or damage by fire and other hazards, as
the Beneficiary may from time to time require, in an amount not less than $25,000,
written by one or more companies acceptable to the Beneficiary, with loss payable to
the latter. Grantor shall further ensure that all policies of insurance required hereunder
provide not less than thirty (30) days' prior written notice to Beneficiary of any
cancellation or material change in terms of any required policies. All policies of
insurance shall be delivered to the Beneficiary as soon as issued. If the Grantor shall
fail for any reason to procure any such insurance and to deliver the policies to the
Beneficiary at least fifteen (15) days prior to the expiration of any policy of insurance
now or hereafter placed on the buildings, the Beneficiary may procure the same at
Grantor's expense. The amount collected under any fire or other insurance policy may
be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at option of Beneficiary the entire amount so collected, or
any part thereof, may be released to Grantor. Such application or release shall not cure
or waive any default or notice of default hereunder or invalidate any act done pursuant
to such notice.
9. Grantor further agrees that each of the following shall be an event of
default hereunder:
9.1 Failure to Pay. The failure of the Grantor to make any payment to
Beneficiary as and when due. Beneficiary shall provide Grantor with ten (10) days'
written notice of default, but not more than two (2) such notices need be sent during any
twelve (12) -month period.
9.2 Other Defaults. Failure of Grantor to observe or perform any other
obligations under this Deed of Trust, other than as specified in Section 9.1 above,
within ten (10) days after notice from Beneficiary specifying the nature of the deficiency.
No notice of default and opportunity to cure shall be required if during the prior twelve
(12) months Beneficiary has already sent a notice to Grantor concerning a failure to pay
or a deficiency in performance of the same obligation.
9.3 Insolvency. The insolvency of Grantor; abandonment of the
Property, or any parcel or portion thereof; an assignment by Grantor for the benefit of
creditors; the filing by Grantor of a voluntary petition in bankruptcy or an adjudication
that Grantor is bankrupt; the appointment of a receiver for the property of Grantor; or the
filing of an involuntary petition in bankruptcy and the failure of Grantor to secure the
dismissal of the petition within thirty (30) days after filing.
9.4 Transfer. The sale, conveyance, transfer or other disposition of
the Property, or any part thereof, or any interest therein, including the transfer of
possessory rights therein, directly or indirectly, either voluntarily, involuntarily or by
operation of law, by contract, deed or otherwise, without Beneficiary's prior written
consent, which consent shall not be unreasonably withheld. The Beneficiary may attach
such conditions to its consent as Beneficiary may determine in its sole discretion,
including without limitation, an increase in the interest rate or the payment of transfer or
assumption fees and the payment of administrative and legal fees and costs incurred by
Beneficiary.
9.5 The default by Grantor under any superior encumbrance to this
Deed of Trust.
Any event of default under this Section 9 shall apply and refer to Grantor,
any guarantor of Grantor's obligations to Beneficiary, and to each of the individuals or
entities which are collectively referred to as "Grantor."
IT IS MUTUALLY AGREED among the parties that:
10. In the event that all or any portion of the Property shall be taken under the
right of eminent domain or condemnation, Beneficiary shall have the right, at its option,
to require that all or any portion of the monies payable as compensation for such taking,
which are in excess of the amount required to pay all reasonable costs, expenses, and
attorney fees necessarily paid or incurred by Grantor in such proceedings, shall be paid
to Beneficiary and applied by it first upon any reasonable costs and expenses and
attorney fees, both in the trial and appellate courts, necessarily paid or incurred by
Beneficiary in such proceedings, and the balance applied upon the indebtedness
secured hereby; and Grantor agrees, at its own expense, to take such actions and
execute such instruments as shall be necessary in obtaining such compensation,
promptly upon Beneficiary's request.
11. Upon written request of Beneficiary, at any time and from time to time, and
upon payment of its fees and presentation of this Deed of Trust and the note for
endorsement (in case of full reconveyances, for cancellation), without affecting the
liability of any person for the payment of the indebtedness, Trustee may (a) consent to
the making of any map or plat of the Property; (b) join in granting any easement or
creating any restriction thereon; (c) join in any subordination or other agreement
affecting this Deed of Trust or the lien or charge thereof; (d) reconvey, without warranty,
all or any part of the Property. The Grantee in any reconveyance may be described as
the "person or persons legally entitled thereto," and the recitals therein of any matters or
facts shall be conclusive proof of the truthfulness thereof. Trustee's fees for any of the
services mentioned in this paragraph shall be not less than $5.00.
12. Upon any default by Grantor hereunder, Beneficiary may at any time
without notice and ex parte, either in person, by agent, or by a receiver to be appointed
by a court, and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of the Property or any part thereof, in
its own name sue or otherwise collect the rents, issues, and profits, including those past
due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney fees upon any indebtedness secured hereby,
and in such order as Beneficiary may determine. Any receiver appointed may serve
without bond. Beneficiary shall not be disqualified to serve as receiver. The expense of
the receivership (including counsel fees and other costs) shall be secured by this Deed
of Trust.
13. The entering upon and taking possession of the Property, the collection of
such rents, issues and profits or compensation or awards for any taking of the Property,
and the application or release thereof as aforesaid, shall not cure or waive any default
or notice of default hereunder or invalidate any act done pursuant to such notice.
14. The Beneficiary may declare all sums secured hereby immediately due
and payable, upon default by Grantor in payment of any indebtedness secured hereby
or in Grantor's performance of any agreement hereunder, time being of the essence
with respect to such payment and /or performance. In such an event, the Beneficiary
may elect to proceed to foreclose this Deed of Trust in equity as a mortgage or direct
the Trustee to foreclose this Deed of Trust by advertisement and sale, or may direct the
Trustee to pursue any other right or remedy, either at law or in equity, which the
Beneficiary may have. In the event the Beneficiary elects to foreclose by advertisement
and sale, the Beneficiary or the Trustee shall execute and cause to be recorded a
written notice of default and election to sell the Property to satisfy the obligation secured
hereby whereupon the Trustee shall fix the time and place of sale, give notice thereof as
required by law, and proceed to foreclose this Deed of Trust in the manner provided in
ORS 86.735 to 86.795.
15. After the Trustee has commenced foreclosure by advertisement and sale,
and at any time prior to five (5) days before the date the Trustee conducts the sale, the
Grantor or any other person so privileged by ORS 86.753, may cure the default or
defaults. If the default consists of a failure to pay, when due, sums secured by the
Deed of Trust, the default may be cured by paying the entire amount due at the time of
the cure other than such portion as would not then be due had no default occurred. Any
other default that is capable of being cured may be cured by tendering the performance
required under the obligation or Deed of Trust. In any case, in addition to curing the
default or defaults, the person making the cure shall pay all costs and expenses actually
incurred by the Beneficiary enforcing the obligation of the Deed of Trust together with
Trustee's fees and attorney fees not exceeding the amounts provided by law.
16. If the default is not so cured, the sale shall be held on the date and at the
time and place designated in the notice of sale or the time to which the sale may be
postponed as provided by law. The Trustee may sell the Property either in one parcel
or in separate parcels and shall sell the parcel or parcels at auction to the highest bidder
for cash, payable at the time of sale. Trustee shall deliver to the purchaser its deed in
the form required by law conveying the Property so sold, but without any covenant or
warranty, express or implied. The recitals in the deed of any matters of fact shall be
conclusive proof of the truthfulness thereof. Any person, excluding the Trustee, but
including the Grantor and Beneficiary, may purchase at the sale.
17. When Trustee sells pursuant to the powers provided herein, Trustee shall
apply the proceeds of sale to payment of (1) the expenses of sale, including the
compensation of the Trustee and a reasonable charge by trustee's attorney, (2) to the
obligation secured by the Deed of Trust, (3) to all persons having recorded liens
subsequent to the interest of the Trustee in the Deed of Trust as their interests may
appear in the order of'their priority and (4) the surplus, if any, to the Grantor or to any
successor in interest entitled thereto.
18. Beneficiary may from time to time appoint a successor or successors to
any Trustee named herein or to any Successor Trustee appointed hereunder. Upon
such appointment, and without conveyance to the Successor Trustee, the Successor
Trustee shall be vested with all title, powers, and duties conferred upon any Trustee
herein named or appointed hereunder. Each such appointment and substitution shall
be made by written instrument executed by Beneficiary, which, when recorded in the
mortgage records of the county or counties in which the Property is located, shall be
proof of proper appointment of the successor trustee.
19. Trustee accepts this trust when this Deed of Trust, duly executed and
acknowledged, is recorded and made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other deed of trust or of
any action or proceeding in which Grantor, Beneficiary, or Trustee shall be a party
unless such action or proceeding is brought by Trustee.
The Grantor covenants and agrees to and with the Beneficiary and the
Beneficiary's successor in interest that the Grantor is lawfully seized in fee simple of the
real Property and has a valid, unencumbered title thereto, except as may be set forth in
an addendum or exhibit attached hereto, and that the Grantor will warrant and forever
defend the same against all persons whomsoever.
This Deed of Trust applies to, inures to the benefit of, and shall bind all parties
hereto, their heirs, legatees, devisees, administrators, executors, personal
representatives, successors, and assigns. The term Beneficiary shall mean the holder
and owner, including pledgee, of the contract secured hereby, whether or not named as
a Beneficiary herein.
IN WITNESS WHEREOF, the Grantor has executed this instrument on the day
and year first above written.
Gerald T Nihill Deanna L ' Nihill
STATE OF OREGON )
) ss.
County of = rt !L' )
This instrument was acknowledged before me on this ; (' =` day of
rr
iD`L' ''t- A 4. 42 , 20 I i , by ( b2 0t-L'n I-}-1 <.L and
f}lN),l.),'t ki I LC_ .
, ff r.
f•» OFFICIAL SEAL \ . NOTARY PUBLIC FOR OREGON
U '. 404Epa=soKON ` - - - -My Commission Expires: /fir
COMMISSION NO. 446906
MY COMMISSION EXPIRES MARCH 21, 2014