MMD2016-00007 MMD2O16 - 00007
Nimbus Center
Associates , LLC
NOTICE OF TYPE I DECISION
MINOR MODIFICATION (MMD) 2016-00007 1111
NIMBUS CENTER ASSOCIATES, LLC
TIGARD
120 DAYS =June 2, 2016
SECTION I. APPLICATION SUMMARY
FILE NAME: Nimbus Center Associates, LLC
CASE NO.: Minor Modification (MMD) MMD2016-00007
PROPOSAL: The applicant is proposing a change of use to a tenant space at 10115 SW Nimbus
Avenue, Suite 200. The 2,707-square-foot tenant space will combine a former
repair-oriented retail use (Suite 200) and a former fast food eating and drinking
establishment (Suite 250) to accommodate a new indoor entertainment use,I Love
Kickboxing.
APPLICANT: Nimbus Center Associates,LLC
Attn: Susan Gray
2501 SE Columbia Way,Suite 240
Vancouver,WA 98661
OWNER: Same as applicant
LOCATION: 10115 SW Nimbus Avenue, Suite 200
WCTM 1S134AA,Tax Lot 1900
ZONING
DESIGNATION: MUE-1 and MUE-2: Mixed Use Employment Districts. The MUE-1 and 2
zoning district is designed to apply to areas where employment uses such as
office, research and development and light manufacturing are concentrated.
Commercial and retail support uses are allowed but are limited, and residential
uses are permitted which are compatible with employment character of the area.
Lincoln Center is an example of an area designated MUE-1, the high density
mixed use employment district. The Nimbus area is an example of an area
designated MUE-2 requiring more moderate densities.
APPLICABLE
REVIEW
CRITERIA: Community Development Code Chapters 18.360.060.0
SECTION II. DECISION
Notice is hereby given that the City of Tigard Community Development Director's designee has
APPROVED the above request. The findings and conclusions on which the decision is based are noted
in Section IV.
UNID2016-00007 Nimbus(:enter.1ssrciatcs.1.1 1
THIS APPROVAL SHALL BE VALID FOR 18 MONTHS
FROM THE EFFECTIVE DATE OF THIS DECISION.
SECTION III. BACKGROUND INFORMATION
Site Information:
The project is located at 10115 SW Nimbus Avenue, Suite 200; south of SW Scholls Ferry Road, west
of SW Nimbus Avenue and east of SW Springwood Drive. The subject property is an approximately
2,707-square-foot tenant space within an existing shopping center. The 2.42-acre development site is
made up of one parcel and contains two commercial buildings, landscaping, and associated parking.
This site is zoned Mixed-Use Employment (MUE-2) and is located within the Washington Square
Regional Center Plan District. In September 2012, the City of Tigard Planning Division approved a
20%parking reduction to the site's minimum off-street parking requirement for current and future uses
(VAR2013-00007).
Proposal Description:
The applicant is proposing a change of use to a tenant space at 10115 SW Nimbus Avenue, Suite 200.
The 2,707-square-foot tenant space will combine a former repair-oriented retail use (Suite 200) and a
former fast food eating and drinking establishment (Suite 250) to accommodate a new indoor
entertainment use,I Love Kickboxing.
SECTION IV. APPLICABLE REVIEW CRITERIA AND FINDINGS
MINOR MODIFICATION OF SITE DEVELOPMENT REVIEW:
Section 18.360.060.0 states that a Minor Modification shall be approved, approved with
conditions or denied following the Director's review and as follows:
1. The proposed development is in compliance with all applicable requirements of this
title; and
Because the applicant has only proposed a change of use, which primarily affects off-street parking
regulations, that is the main focus of this review. The change of use is from a repair-oriented retail use
(Suite 200) and a fast food eating and drinking establishment (Suite 250) to a combined, 2,707-square-
foot indoor entertainment use. The 2.42-acre shopping center is a mixed-use, multi-tenant site, and is
therefore subject to the required minimum vehicle parking formula outlined in TDC 18.765.030.D.The
table below calculates the minimum off-street vehicle requirements based on this formula:
Use Category Square Parking Spaces Percentage Total Parking
Footage Required Required Spaces Required
Sales-Orientedeta�il- — 10,806 32 100% 32
Fast Food Eating& 7,0x19 49 85 -42
Drinking Establishment
Personal Services 3,348 8 70°`0 6
Allet
Medical/Dental Office 2,894 11 611" 7
Indoor Entertainment 2,707 12 60°-0 7
Preliminary Total 93
Total (With 20% Reduction) 74
11111.1111111
Staff finds that 74 parking spaces are required for the entire shopping center, taking into consideration
the change of use discussed above, and the approved 20% reduction to the site's minimum-off street
parking requirement (VAR2013-00007). Based on the applicant's submitted site plan, staff finds there is
adequate parking at the development site,with 94 spaces provided.
\1\I1)2 16-00007 cntcr.l�s�xiatcs,I,L(: 2
Upon review of the applicant's plans and narrative, staff finds that all other applicable requirements are
met.This criterion is met.
2. The modification is not a major modification.
FINDING: Staff finds that the changes listed in TDC 18.360.050.B.1-11 are either satisfied or do
not apply. Therefore,the proposed development is not a major modification. This criterion is met.
CONCLUSION: The proposal is a Minor Modification of existing site development and is in
compliance with the applicable requirements of this Title.
SECTION V. PROCEDURE AND APPEAL INFORMATION
Notice:
Notice was posted at City Hall and mailed to:
X The applicant and owners
X Affected government agencies
Final Decision:
A Minor Modification is a Type I procedure. As such, the Director's decision is final on the date it is
mailed or otherwise provided to the applicant,whichever occurs first. The Director's decision may not
be appealed locally and is the final decision of the City.
THIS DECISION IS FINAL ON FEBRUARY 4, 2016
AND BECOMES EFFECTIVE ON FEBRUARY 5, 2016
Questions:
If you have any questions,please contact Lina Smith at(503) 718-2438 or LinaCS@a,tigard-or.gov.
•
IOWA. February 4.2016
APPROVED BY: Lina Smith
Assistant Planner
MMD2016-00007 Nimbus Center Associates,1 J A: 3
APPLICANT
MATERIALS
RECEIVED
FEB 0 12016
City of Tigard CITY OF TIGARD
1111
CfixpiNpGifiNcGallomMinor Modification — Type
TIGARD
MaliMEIMMINIMMIEVIMINEMIr-
GENERAL INFORMATION
Property Address/Location(s): 10115 SW Nimbus Ave
In addition, the Director must find that the proposed
Tigard, Or 97223 change is in compliance with all applicable requirements of
Tax Map&Tax Lot#(s): R1205163 Title 18 of the Tigard Development Code. To complete
1 SI 34AA-01900 this review, the Applicant's proposal must include a
Site Size: 26,765 building sf discussion indicating how the site expansion/change will
Nimbus Center Associates,LLC C/0 FC Services,LLC continue to comply with the maximum setback, building
Applicant*: height, parking, and landscaping standards. Other
Address: 2501 SE Columbia Way, Ste 240 requirements of this title such as clear vision, solid waste
City/State: Vancouver,WA Zip: 98661 storage, non-conforming situations, signs, and tree
Primary Contact: Susan Gray,Senior Portfolio Manager removal may also be applicable depending on the type and
Phone: 360-597-7040 Fax: location of the proposed modifications.
E-Mail: susan@fcservicesllc.com
Property Owner/Deed Holder(s)*:
(Attach list if more than one)
Nimbus Center Associates, LLC REQUIRED SUBMITTAL ELEMENTS
Address: 2501 SE Columbia Way,Ste 240 Phone: 360-597-7040
Vancouver,WA 98661 (Applications will not be accepted without the
City/State: Zip: following required submittal elements)
*When the owner and the applicant are different people, the ® Application Form
applicant must be the purchaser of record or a lessee in ® Owner's Signature/Written Authorization
possession with written authorization from the owner or an ® Title Transfer Instrument or Deed
agent of the owner. The owner(s) must sign this application
in the space provided on the back of this form or submit a ® Site Plan(4 Large Plans&One—Reduced to 81/2"x 11")
written authorization with this application. Applicant's Statement/Narrative(4 copies)
2 Filing Fee
Minor Modifications:
—
Minor Modifications are processed for permitted uses and
conditional uses. To review a modification as a Minor
Modification, the Director must first find that the expansion
or change does not invoke one or more of the criteria
discussed within Section 18.360.050(B) — Site Development FOR STAFF USE ONLY
Review or Section 18.330.020(B)(2) —Conditional Use. If the �e ��/�_ 0 'k 9—
modification exceeds the maximum allowed under any one or Case No.(s): /1'/
more of the criteria, a Major Modification review is required.
Major Modifications are processed in the same manner as a Other Case No.(s):
new Site Development Review or Conditional Use Permit. CJ;
Fee:
Applicant's Statement: Receipt No.: �7
The applicant's statement must include a summary of the Date: �PII//'E'
proposed changes. Criteria in either 18.360.050(B) or
I8.330.020(13)(2) must be addressed with a detailed response Application Accepted By: 1.—s
47
to each criterion. Failure to provide the information needed Date Determined Complete: dc�7!`
to process the application would be reason to consider an Revised: 6/24/2013
application incomplete and delay review of the proposal. 1:\CUR1LN Vaster.`land 1U.c:\rpficat on.\Mimi Mrxlification.doc.
City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-718-2421 I www.tigard-or.gov I Page 1 of 2
To consider an application complete,you will need to submit ALL of the REQUIRED SUBMITTAL ELEMENTS as
described on the front of this application in the"Required Submittal Elements"box.
(Detailed Submittal Requirement Information sheets can be obtained,upon request,for all types of Land Use Applications.)
THE APPLICANT(S)SHALL CERTIFY THAT:
• The above request does not violate any deed restrictions that may be attached to or imposed upon the subject
property.
• If the application is granted, the applicant will exercise the rights granted in accordance with the terms and subject to all the
conditions and limitations of the approval.
• All of the above statements and the statements in the site plan, attachments, and exhibits transmitted herewith, are true;and
the applicants so acknowledge that any permit issued,based on this application,and may be revoked if it is found that any such
statements are false.
• The applicant has read the entire contents of the application, including the policies and criteria, and understands the
requirements for approving or denying the application.
SIGNATURES of each owner of the subject property.
DATED this 2 day of jy1,tti,u ,20
Owner's<igna Owners Signature
Owner's Signature Owner's Signature
Owner's Signature Owner's Signature
City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of 2
After Recording Return To: RECEIVED
iQ Credit Union FEB 0 1 Z016
Attention: Geri Nydegger CITY OF TIGARD
PLANNING/ENGINEERING
305 NE 81st Street
Vancouver, Washington 98665
•
DEED OF TRUST,SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
This DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND
RENTS (this "Deed of Trust") is entered into at Vancouver, Washington, as of October 29, 2008, among
Nimbus Center Associates, LLC, an Oregon limited liability company successor in interest to Nimbus
Center Associates, an Oregon joint venture consisting of George H. Killian and Joseph W. Angel II, with
an address of 500 E Broadway, Suite 110, Vancouver, Washington 98660 (the "Grantor"), and
Chicago Title Insurance Company of Oregon, with an address of 888 SW Fifth Avenue — Suite 930,
Portland, Oregon 97204 (the "Trustee") for the use and benefit of iQ Credit Union, a Washington State
Credit Union, with an address of 305 NE 81st Street, Vancouver, Washington 98665 (the "Beneficiary"),
and the Beneficiary.
The real property, which is the subject matter of this Deed of Trust, has the following address(es):
10115 SW Nimbus Avenue, Tigard, Oregon 97223 (the "Address(es)"). The tax account number for
said property is R1205163. In the event of any conflict, the legal description on Exhibit A shall control.
1. DEED OF TRUST, OBLIGATIONS AND FUTURE ADVANCES
1.1 Deed of Trust. For valuable consideration paid and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Grantor hereby irrevocably and
unconditionally mortgages, grants, bargains, transfers, sells, conveys, sets over and assigns to the
Trustee and its successors and assigns, IN TRUST,for the benefit and security of the Beneficiary forever,
WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, the "Property" described below,
to secure the prompt payment and performance of the Obligations (as hereinafter defined), including
without limitation, all amounts due and owing to the Beneficiary and all obligations respecting that certain
Five Year Adjustable Term Note, dated October 29, 2008, by Nimbus Center Associates, LLC in
favor of the Beneficiary in the original principal amount of $3,470,000.00 (the "Note"; and collectively,
along with all other agreements, documents, certificates and instruments delivered in connection
therewith, the "Loan Documents"), and any substitutions, modifications, extensions or amendments to any
of the Loan Documents.
The amount of principal obligations outstanding and evidenced by the Loan Documents and
secured by this Deed of Trust total $3,470,000.00 as of the date of this Deed of Trust (the "Amount"), but
this Deed of Trust shall nevertheless secure payment and performance of all Obligations including,
without limitation, any other liabilities and future advances, direct or indirect, absolute or contingent, now
existing or hereafter arising from Grantor to Beneficiary.
1.2 Security Interest in Property. As continuing security for the Obligations the Grantor hereby
pledges, assigns and grants to the Beneficiary, and its successors and assigns, a security interest in any
of the Property (as hereinafter defined) constituting personal property or fixtures. This Deed of Trust is
and shall be deemed to be a security agreement and financing statement pursuant to the terms of the
Uniform Commercial Code of Oregon (the "Uniform Commercial Code") as to any and all personal
property and fixtures and as to all such property the Beneficiary shall have the rights and remedies of a
secured party under the Uniform Commercial Code in addition to its rights hereunder. This Deed of Trust
constitutes a financing statement filed as a fixture filing under Section 9-502(c)of the Uniform Commercial
Code covering any Property, which now is or later may become a fixture.
1.3 Collateral Assignment of Leases and Rents. The Grantor hereby irrevocably and unconditionally
assigns to the Beneficiary, and its successors and assigns, as collateral security for the Obligations all of
the Grantor's rights and benefits under any and all Leases (as hereinafter defined) and any and all rents
and other amounts now or hereafter owing with respect to the Leases or the use or occupancy of the
Property. This collateral assignment shall be absolute and effective immediately, but the Grantor shall
have a license, revocable by the Beneficiary, to continue to collect rents owing under the Leases until an
Event of Default (as hereinafter defined) occurs and the Beneficiary exercises its rights and remedies to
collect such rents as set forth herein.
1.4 Conditions to Grant. The Beneficiary shall have and hold the above granted Property unto and to
the use and benefit of the Trustee, IN TRUST, for the benefit and security of the Beneficiary, and to the
Beneficiary, as the case may be, and their successors and assigns, forever; provided, however, the
conveyances, grants and assignments contained in this Deed of Trust are upon the express condition
that, if Grantor shall irrevocably pay and perform the Obligations in full, including, without limitation, all
principal, interest and premium thereon and other charges, if applicable, in accordance with the terms and
conditions in the Loan Documents and this Deed of Trust, shall pay and perform all other Obligations as
set forth in this Deed of Trust and shall abide by and comply with each and every covenant and condition
set forth herein and in the Loan Documents, the conveyances, grants and assignments contained in this
Deed of Trust shall be appropriately released and discharged.
1.5 Property. The term "Property," as used in this Deed of Trust, shall mean that certain parcel of
land and the fixtures, structures and improvements and all personal property constituting fixtures, as that
term is defined in the Uniform Commercial Code, now or hereafter thereon located at the Address(es), as
more particularly described in Exhibit A attached hereto, together with: (i) all rights now or hereafter
existing, belonging, pertaining or appurtenant thereto; (ii) the following categories of assets as defined in
the Uniform Commercial Code: goods (including inventory, equipment and any accessions thereto),
instruments (including promissory notes), documents, accounts (including health-care-insurance
receivables), chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights
(whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities and all
other investment property, general intangibles (including payment intangibles and software), supporting
obligations and any and all proceeds of any thereof, whether now owned or hereafter acquired, that are
located on or used in connection with, or that arise in whole or in part out of the Grantor's use of or
business conducted on or respecting, the Property and any substitutions, replacements, accessions and
proceeds of any of the foregoing; (iii) all judgments, awards of damages and settlements hereafter made
as a result or in lieu of any Taking, as hereinafter defined; (iv) all of the rights and benefits of the Grantor
under any present or future leases and agreements relating to the Property, including, without limitation,
rents, issues and profits, or the use or occupancy thereof together with any extensions and renewals
thereof, specifically excluding all duties or obligations of the Grantor of any kind arising thereunder (the
"Leases"); and (v) all contracts, permits and licenses respecting the use, operation or maintenance of the
Property.
1.6 Obligations. The term "Obligation(s)," as used in this Deed of Trust, shall mean without limitation
all loans, advances, indebtedness, notes, liabilities and amounts, liquidated or unliquidated, now or
hereafter owing by the Grantor to the Beneficiary at any time, of each and every kind, nature and
description, whether arising under this Deed of Trust or otherwise, and whether secured or unsecured,
direct or indirect (that is, whether the same are due directly by the Grantor to the Beneficiary; or are due
indirectly by the Grantor to the Beneficiary as endorser, guarantor or other surety, or as obligor of
obligations due third persons which have been endorsed or assigned to the Beneficiary, or otherwise),
absolute or contingent, due or to become due, now existing or hereafter contracted, including, without
limitation, payment of all amounts outstanding when due pursuant to the terms of any of the Loan
Documents. Said term shall also include all interest and other charges chargeable to the Grantor or due
from the Grantor to the Beneficiary from time to time and all advances, costs and expenses referred to in
this Deed of Trust, including without limitation the costs and expenses (including reasonable attorney's
fees) of enforcement of the Beneficiary's rights hereunder or pursuant to any document or instrument
executed in connection herewith.
1.7 Cross-Collateral and Future Advances. It is the express intention of the Grantor that this Deed of
Trust secure payment and performance of all of the Obligations, whether now existing or hereinafter
incurred by reason of future advances by the Beneficiary or otherwise, and regardless of whether such
Obligations are or were contemplated by the parties at the time of the granting of this Deed of Trust.
Notice of the continuing grant of this Deed of Trust shall not be required to be stated on the face of any
document evidencing any of the Obligations, nor shall such documents be required to otherwise specify
that they are secured hereby.
2. REPRESENTATIONS, WARRANTIES,COVENANTS
2.1 Representations and Warranties. The Grantor represents and warrants that:
(a) This Deed of Trust has been duly executed and delivered by the Grantor and is the legal, valid
and binding obligation of the Grantor enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally;
(b) The Grantor is the sole legal owner of the Property, holding good and marketable fee simple
title to the Property, subject to no liens, encumbrances, leases, security interests or rights of
others, other than as set forth in detail in Exhibit B hereto (the"Permitted Encumbrances");
(c) The Grantor is the sole legal owner of the entire lessor's interest in Leases, if any, with full
power and authority to encumber the Property in the manner set forth herein, and the Grantor
has not executed any other assignment of Leases or any of the rights or rents arising
thereunder;
(d) As of the date hereof, to the best of Grantor's knowledge and based on an Environmental
Report delivered to Beneficiary, there are no Hazardous Substances (as hereinafter defined)
in, on or under the Property, except as disclosed in writing to and acknowledged by the
Beneficiary; and
(e) Each Obligation is a commercial obligation and does not represent a loan used for personal,
family or household purposes and is not a consumer transaction.
2.2 Recording; Further Assurances. The Grantor covenants that it shall, at its sole cost and expense
and upon the request of the Beneficiary, cause this Deed of Trust, and each amendment, modification or
supplement hereto, to be recorded and filed in such manner and in such places, and shall at all times
comply with all such statutes and regulations as may be required by law in order to establish, preserve
and protect the interest of the Beneficiary in the Property and the rights of the Beneficiary under this Deed
of Trust. Grantor will from time to time execute and deliver to the Beneficiary such documents, and take
or cause to be taken, all such other or further action, as the Beneficiary may request in order to effect and
confirm or vest more securely in the Beneficiary all rights contemplated by this Deed of Trust (including,
without limitation, to correct clerical errors) or to vest more fully in, or assure to the Beneficiary the
security interest in, the Property or to comply with applicable statute or law. To the extent permitted by
applicable law, Grantor authorizes the Beneficiary to file financing statements, continuation statements or
amendments, and any such financing statements; continuation statements or amendments may be filed
at any time in any jurisdiction. The Beneficiary may at any time and from time to time file financing
statements, continuation statements and amendments thereto that describe the Property as defined in
this Deed of Trust and which contain any other information required by Article 9 of the Uniform
Commercial Code for the sufficiency or filing office acceptance of any financing statement, continuation
statement or amendment, including whether Grantor is an organization, the type of organization and any
organization identification number issued to Grantor; Grantor also authorizes the Beneficiary to file
financing statements describing any agricultural liens or other statutory liens held by the Beneficiary.
Grantor agrees to furnish any such information to the Beneficiary promptly upon request. In addition,
Grantor shall at any time and from time to time, take such steps as the Beneficiary may reasonably
request for the Beneficiary (i) to obtain an acknowledgment, in form and substance satisfactory to the
Beneficiary, of any bailee having possession of any of the Property that the bailee holds such Property for
the Beneficiary, and (ii) otherwise to insure the continued perfection and priority of the Beneficiary's
security interest in any of the Property and the preservation of its rights therein. Grantor hereby
constitutes the Beneficiary its attorney-in-fact to execute and file all filings required or so requested for the
foregoing purposes, all acts of such attorney being hereby ratified and confirmed; and such power, being
coupled with an interest, shall be irrevocable until this Deed of Trust terminates in accordance with its
terms, all Obligations are paid in full and the Property is released.
2.3 Restrictions on the Grantor. The Grantor covenants that it will not, nor will it permit any other
person to, directly or indirectly, without the prior written approval of the Beneficiary in each instance:
(a) Sell, convey, assign, transfer, mortgage, pledge, hypothecate, or dispose of all or any part of
any legal or beneficial interest in the Grantor or the Property or any part thereof or permit any
of the foregoing, except as expressly permitted by the terms of this Deed of Trust;
(b) Permit the use, generation, treatment, storage, release or disposition of any oil or other
material or substance constituting hazardous waste or hazardous materials or substances,
under any applicable Federal or state law, regulation or rule ("Hazardous Substances"), but
excluding the use or storage of normal quantities of Hazardous Substances normally found
and used in similar properties as long as they are stored and used in compliance with
Environmental laws; or
(c) Permit to be created or suffer to exist any mortgage, lien, security interest, attachment or other
encumbrance or charge on the Property or any part thereof or interest therein (except for the
Permitted Encumbrances), including, without limitation, (i) any lien arising under any Federal,
state or local statute, rule, regulation or law pertaining to the release or cleanup of Hazardous
Substances and (ii) any mechanics' or materialmen's lien. The Grantor further agrees to give
the Beneficiary prompt written notice of the imposition, or notice, of any lien referred to in this
Section and to take any action necessary to secure the prompt discharge or release of the
same. The Grantor agrees to defend its title to the Property and the Beneficiary's interest
therein against the claims of all persons and, unless the Beneficiary requests otherwise, to
appear in and diligently contest, at the Grantor's sole cost and expense, any action or
proceeding that purports to affect the Grantor's title to the Property or the priority or validity of
this Deed of Trust or the Beneficiary's interest hereunder.
2.4 Operation of Property. The Grantor covenants and agrees as follows:
(a) The Grantor will not permit the Property to be used for any unlawful or improper purpose, will
at all times comply with all Federal, state and local laws, ordinances and regulations, and the
provisions of any Lease, easement or other agreement affecting all or any part of the Property,
and will obtain and maintain all governmental or other approvals relating to the Grantor, the
Property or the use thereof, including without limitation, any applicable zoning or building
codes or regulations and any laws or regulations relating to the handling, storage, release or
cleanup of Hazardous Substances, and will give prompt written notice to the Beneficiary of(i)
any violation of any such law, ordinance or regulation by the Grantor or relating to the
Property. (ii) receipt of notice from any Federal, state or local authority alleging any such
violation and (iii) the presence or release on the Property of any Hazardous Substances;
(b) The Grantor will at all times keep the Property insured for such losses or damage, in such
amounts and by such companies as may be required by law and which the Beneficiary may
reasonably require, provided that, in any case, the Grantor shall maintain: (i) physical hazard
insurance on an "all risks" basis in an amount not less than 100% of the full replacement cost
of the Property; (ii) flood insurance if and as required by applicable Federal law and as
otherwise required by the Beneficiary; (iii) comprehensive commercial general liability
insurance; (iv) rent loss and business interruption insurance; and (v) such other insurance as
the Beneficiary may reasonably require from time to time, including builder's risk insurance in
the case of construction loans. All policies regarding such insurance shall be issued by
companies licensed to do business in the state where the policy is issued and also in the state
where the Property is located, be otherwise reasonably acceptable to the Beneficiary, provide
deductible amounts reasonably acceptable to the Beneficiary, name the Beneficiary as
mortgagee, loss payee and additional insured, and provide that no cancellation or material
modification of such policies shall occur without at least Thirty (30) days prior written notice to
the Beneficiary. Such policies shall include (i) a mortgage endorsement determined by the
Beneficiary in good faith to be equivalent to the "standard" mortgage endorsement so that the
insurance, as to the interest of the Beneficiary, shall not be invalidated by any act or neglect of
the Grantor or the owner of the Property, any foreclosure or other proceedings or notice of
sale relating to the Property, any change in the title to or ownership of the Property, or the
occupation or use of the Property for purposes more hazardous than are permitted at the date
of inception of such insurance policies; (ii) a replacement cost endorsement; (iii) an agreed
amount endorsement; (iv) a contingent liability from operation endorsement; and (v) such
other endorsements as the Beneficiary may request. The Grantor will furnish to the
Beneficiary upon request such original policies, certificates of insurance or other evidence of
the foregoing as are reasonably acceptable to the Beneficiary. The terms of all insurance
policies shall be such that no coinsurance provisions apply, or if a policy does contain a
coinsurance provision, the Grantor shall insure the Property in an amount sufficient to prevent
the application of the coinsurance provisions;
OREGON INSURANCE WARNING
Unless Grantor provides Beneficiary with evidence of the insurance coverage as required
herein, Beneficiary may purchase insurance at Grantor's expense to protect Beneficiary's
interest. This insurance may, but need not, also protect Grantor's interest. If the collateral
becomes damaged, the coverage Beneficiary purchases may not pay any claim Grantor
makes or any claim made against Grantor. Grantor may later cancel this coverage by
providing evidence that Grantor has obtained property coverage elsewhere.
Grantor is responsible for the cost of any insurance purchased by Beneficiary. The cost of this
insurance may be added to the indebtedness secured hereby. If the cost is added to the
indebtedness secured hereby, the interest rate on the indebtedness secured hereby will apply
to this added amount. The effective date of coverage may be the date the prior coverage
lapsed or the date Grantor failed to provide proof of coverage.
The coverage Beneficiary purchases may be considerably more expensive than insurance
Grantor can obtain on Grantor's own and may not satisfy any need for property damage
coverage or any mandatory liability insurance requirements imposed by applicable law;
(c) Grantor will not, without the prior written consent of the Beneficiary, execute any assignment
of the Leases except in favor of the Beneficiary, or accept any rentals under any Lease for
more than one month in advance and will at all times perform and fulfill every term and
condition of the Leases;
(d) Grantor will at all times (i) maintain complete and accurate records and books regarding the
Property in accordance with cash basis accounting principles and (ii) permit the Beneficiary
and the Beneficiary's agents, employees and representatives, at such reasonable times as the
Beneficiary may request, on Ten (10) days written notice, to enter and inspect the Property
and such books and records; and
(e) Grantor will at all times keep the Property in good and first-rate repair and condition (damage
from casualty not excepted) and will not commit or permit any strip, waste, impairment,
deterioration or alteration of the Property or any part thereof, provided, however,that(a)Grantor
may alter any existing improvements subject to the condition that the value of the improvements
on the Property upon completion of such alterations is equal to or exceeds the value of such
improvements prior to such work and (b) all work will be done in a good and workmanlike
manner in compliance with all applicable building and zoning laws and all other laws,
ordinances, orders, and requirement of all authorities having or claiming jurisdiction.
2.5 Payments. The Grantor covenants to pay when due: all Federal, state, municipal, real property
and other taxes, betterment and improvement assessments and other governmental levies, water rates,
sewer charges, insurance premiums and other charges on the Property, this Deed of Trust or any
Obligation secured hereby that could, if unpaid, result in a lien on the Property or on any interest therein.
Subject to ORS 86.205 through 86.275, if applicable, pertaining to residential real estate, in the Event of
Default and, if and when requested by the Beneficiary, the Grantor shall deposit from time to time with the
Beneficiary sums determined by the Beneficiary to be sufficient to pay when due the amounts referred to
in this Section. The Grantor shall have the right to contest any notice, lien, encumbrance, claim, tax,
charge, betterment assessment or premium filed or asserted against or relating to the Property; provided
that it contests the same diligently and in good faith and by proper proceedings and, at the Beneficiary's
request, provides the Beneficiary with adequate cash security, in the Beneficiary's reasonable judgment,
against the enforcement thereof. The Grantor shall furnish to the Beneficiary the receipted real estate tax
bills or other evidence of payment of real estate taxes for the Property within thirty (30) days prior to the
date from which interest or penalty would accrue for nonpayment thereof. The Grantor shall also furnish
to the Beneficiary evidence of all other payments referred to above within fifteen (15) days after written
request therefor by the Beneficiary. If Grantor shall fail to pay such sums, the Beneficiary may, but shall
not be obligated to, advance such sums. Any sums so advanced by the Beneficiary shall be added to the
Obligations, shall bear interest at the highest rate specified in any note evidencing the Obligations, and
shall be secured by the lien of this Deed of Trust.
2.6 Notices; Notice of Default. The Grantor will deliver to the Beneficiary, promptly upon receipt of
the same, copies of all notices or other documents it receives that affect the Property or its use, or claim
that the Grantor is in default in the performance or observance of any of the terms hereof or that the
Grantor or any tenant is in default of any terms of the Leases. The Grantor further agrees to deliver to the
Beneficiary written notice promptly upon the occurrence of any Event of Default hereunder or event that
with the giving of notice or lapse of time, or both, would constitute an Event of Default hereunder.
2.7 Takings. In case of any condemnation or expropriation for public use of, or any damage by
reason of the action of any public or governmental entity or authority to, all or any part of the Property (a
"Taking"), or the commencement of any proceedings or negotiations that might result in a Taking, the
Grantor shall immediately give written notice to the Beneficiary, describing the nature and extent thereof.
The Beneficiary may, at its option, appear in any proceeding for a Taking or any negotiations relating to a
Taking and the Grantor shall immediately give to the Beneficiary copies of all notices, pleadings,
determinations and other papers relating thereto. The Grantor shall in good faith and with due diligence
and by proper proceedings file and prosecute its claims for any award or payment on account of any
Taking. The Grantor shall not settle any such claim without the Beneficiary's prior written consent. The
Grantor shall hold any amounts received with respect to such awards or claims, by settlement, judicial
decree or otherwise, in trust for the Beneficiary and immediately pay the same to the Beneficiary. The
Grantor authorizes any award or settlement due in connection with a Taking to be paid directly to the
Beneficiary in amounts not exceeding the Obligations. The Beneficiary may apply such amounts to the
Obligations in such order as the Beneficiary may determine: provided however, that if the Beneficiary
shall require repair of the property, the Beneficiary may release all or any portion of such proceeds to the
Grantor for such purpose
2.8 Insurance Proceeds. The proceeds of any insurance resulting from any loss with respect to the
Property shall be paid to the Beneficiary and, at the option of the Beneficiary, be applied to the
Obligations in such order as the Beneficiary may determine; provided, however, that if the Beneficiary
shall require repair of the Property, the Beneficiary may release all or any portion of such proceeds to the
Grantor for such purpose. Any insurance proceeds paid to the Grantor shall be held in trust for the
Beneficiary and promptly paid to it.
3. CERTAIN RIGHTS OF THE BENEFICIARY
3.1 Legal Proceedings. The Beneficiary shall have the right, but not the duty, to intervene or
otherwise participate in any legal or equitable proceeding that, in the Beneficiary's reasonable judgment,
might affect the Property or any of the rights created or secured by this Deed of Trust. The Beneficiary
shall have such right whether or not there shall have occurred an Event of Default hereunder.
3.2 Appraisals/Assessments. The Beneficiary shall have the right, at the Grantor's sole cost and
expense, to obtain appraisals, environmental site assessments or other inspections of the portions of the
Property that are real estate at such times as the Beneficiary deems necessary or as may be required by
applicable law, or its prevailing credit or underwriting policies.
3.3 Financial Statements. The Beneficiary shall have the right, at the Grantor's sole cost and
expense. to require delivery of financial statements in form and substance acceptable to the Beneficiary
from the Grantor or any guarantor of any of the Obligations and the Grantor hereby agrees to deliver such
financial statements and/or cause any such guarantor to so deliver any such financial statement when
required by the Beneficiary, but no more often than as required by loan documents
3.4 Substitution of Trustee. The Beneficiary may from time to time, without notice to the Grantor or
Trustee and with or without cause and with or without the resignation of Trustee, substitute a successor or
successors to the Trustee named herein or acting hereunder. Upon such appointment, the successor
trustee shall be vested with all title, powers and duties conferred upon the Trustee named herein or acting
hereunder. Each such appointment and substitution shall be made by a writing executed by Beneficiary and
when duly recorded in the appropriate office shall be conclusive proof of proper appointment of such
successor Trustee. The procedure herein provided for substitution of the Trustee shall be conclusive of all
other provisions for substitution, statutory or otherwise.
3.5 Tax Return. Grantor shall provide the Beneficiary with copies of Grantor's filed Federal and state
tax returns for the prior year within 90 days after the date that Grantor's tax returns are required to be
filed.
3.6 Leases and Rent Roll. The Grantor shall deliver to the Beneficiary (i) during each calendar year
and at such other times as the Beneficiary shall request a rent roll for the Property, in form acceptable to
the Beneficiary, listing all tenants and occupants and describing all of the Leases; and (ii) at such times
as the Beneficiary shall request executed copies of all the Leases.
4. DEFAULTS AND REMEDIES
4.1 Events of Default. Event of Default shall mean the occurrence of any one or more of the following
events:
(a) default of any liability, obligation, covenant or undertaking of the Grantor to the Beneficiary,
hereunder or otherwise, including, without limitation, failure to pay in full and when due and
the following Ten (10) days written notice any installment of principal or interest or default of
the Grantor under any other Loan Document or any other agreement with the Beneficiary;
(b) failure by the Grantor to perform, observe or comply with any of the covenants, agreements,
terms or conditions set forth in this Deed of Trust or the Loan Documents within thirty (30)
days after written notice from Beneficiary specifying the nature of the default or, if the default
cannot be cured within thirty (30) days, failure within such time to commence and pursue
curative action with reasonable diligence. No notice of default and no opportunity to cure shall •
be required if during any twelve (12) month period Beneficiary has already sent a notice to
Grantor concerning default in the performance of the same obligation;
(c) failure by any guarantor to perform, observe or comply with any of the covenants, agreements,
terms or conditions set forth in the Deed of Trust or the Loan Documents;
(d) the (i) occurrence of any material uninsured loss, theft, damage or destruction of, or (ii)
issuance or making of any levy, seizure, attachment, execution or similar process on a
material portion of the Property;
(e) default of any material liability, obligation or undertaking of the Grantor to any other party;
(f) if any statement, representation or warranty heretofore, now or hereafter made by the Grantor
or any guarantor of the Obligations in connection with this Deed of Trust or in any supporting
financial statement of the Grantor or any guarantor of the Obligations shall be determined by
the Beneficiary to have been false or misleading in any material respect when made;
(g) if the Grantor or any guarantor of the Obligations is a corporation, trust, partnership or limited
liability company, the liquidation, termination or dissolution of any such organization, or the
merger or consolidation of such organization into another entity, or its ceasing to carry on
actively its present business or the appointment of a receiver for its property;
(h) the death of the Grantor or any guarantor of the Obligations and, if the Grantor or any
guarantor of the Obligations is a partnership or limited liability company, the death of any
partner or member; provided, however, that if Beneficiary determines in its reasonable
discretion that its interests are not materially impaired, Beneficiary shall permit the deceased's
estate to unconditionally assume the obligations arising under this Note in a manner
satisfactory to Beneficiary and, in doing so, cure the Event of Default.
(i) the institution by or against the Grantor or any guarantor of the Obligations of any proceedings
under the Bankruptcy Code 11 USC §101 et seq. or any other law in which the Grantor or any
guarantor of the Obligations is alleged to be insolvent or unable to pay its debts as they
mature, or the making by the Grantor or any guarantor of the Obligations of an assignment for
the benefit of creditors or the granting by the Grantor or any guarantor of the Obligations of a
trust mortgage for the benefit of creditors;
(j) a judgment or judgments for the payment of money shall be rendered against the Grantor, and
any such judgment shall remain unsatisfied and in effect for any period of thirty (30)
consecutive days without a stay of execution;
(k) any levy, lien (including mechanics lien), seizure, attachment, execution or similar process
shall be issued or levied on any of the property of the Grantor; or
(I) the termination or revocation of arty guaranty of the Obligations; other than on the death of the
guarantor.
4.2 Remedies. On the occurrence of any Event of Default the Beneficiary may, at any time
thereafter, at its option and, to the extent permitted by applicable law, without notice, exercise any or all of
the following remedies:
(a) Declare the Obligations due and payable, and the Obligations shall thereupon become
immediately due and payable, without presentment, protest, demand or notice of any kind, all
of which are hereby expressly waived by the Grantor except for Obligations due and payable
on demand, which shall be due and payable on demand whether or not an event of default
has occurred hereunder;
(b) Direct the Trustee to, or enter, take possession of, manage and operate the Property
(including all personal property and all records and documents pertaining thereto) and any
part thereof and exclude the Grantor therefrom, take all actions it deems necessary or proper
to preserve the Property and operate the Property as a mortgagee in possession with all the
powers as could be exercised by a receiver or as otherwise provided herein or by applicable
law; provided, however, the entry by the Beneficiary upon the Property for any reason shall
not cause the Trustee or the Beneficiary to be a mortgagee in possession, except upon the
express written declaration of the Beneficiary;
(C) With or without taking possession, receive and collect all rents, income, issues and profits
("Rents") from the Property (including all real estate and personal property and whether past
due or thereafter accruing), including as may arise under the Leases, and, following an Event
of Default, the Grantor appoints the Beneficiary as its true and lawful attorney with the power
for the Beneficiary in its own name and capacity to demand and collect Rents and take any
action that the Grantor is authorized to take under the Leases. The Beneficiary shall (after
payment of all costs and expenses incurred) apply any Rents received by it to the Obligations
in such order as the Beneficiary determines, or in accordance with any applicable statute, and
the Grantor agrees that exercise of such rights and disposition of such funds shall not be
deemed to cure any default or constitute a waiver of any foreclosure once commenced nor
preclude the later commencement of foreclosure for breach thereof. The Beneficiary shall be
liable to account only for such Rents actually received by the Beneficiary. Lessees under the
Leases are hereby authorized and directed, following notice from the Beneficiary, to pay all
amounts due the Grantor under the Leases to the Beneficiary, whereupon such lessees shall
be relieved of any and all duty and obligation to the Grantor with respect to such payments so
made;
(d) In addition to any other remedies, to cause the Trustee to sell the Property or any part thereof
or interest therein pursuant to exercise of its power of sale or otherwise at public auction on
terms and conditions as the Beneficiary may determine, or otherwise foreclose this Deed of
Trust in any manner permitted by law, and upon such sale the Grantor shall execute and
deliver such instruments as the Beneficiary may request in order to convey and transfer all of
the Grantor's interest in the Property, and the same shall operate to divest all rights title and
interest of the Grantor in and to the Property. In the event this Deed of Trust shall include
more than one parcel of property or subdivision (each hereinafter called a "portion"), the
Beneficiary shall, in its sole and exclusive discretion and to the extent permitted by applicable
• law, be empowered to foreclose upon any such portion without impairing its right to foreclose
subsequently upon any other portion or the entirety of the Property from time to time
thereafter. In addition, the Beneficiary may in its sole and exclusive discretion subordinate this
Deed of Trust to one or more Leases for the sole purpose of preserving any such Lease in the
event of a foreclosure;
(e) Cause one or more environmental assessments to be taken, arrange for the cleanup of any
Hazardous Substances or otherwise cure the Grantor's failure to comply with any statute,
regulation or ordinance relating to the presence or cleanup of Hazardous Substances, and the
Grantor shall provide the Beneficiary or its agents with access to the Property for such
purposes; provided that the exercise of any of such remedies shall not be deemed to have
relieved the Grantor from any responsibility therefor or given the Beneficiary "control" over the
Property or cause the Beneficiary to be considered to be a mortgagee in possession, "owner"
or"operator"of the Property for purposes of any applicable law, rule or regulation pertaining to
Hazardous Substances; and
(f) Take such other actions or proceedings as the Beneficiary deems necessary or advisable to
protect its interest in the Property and ensure payment and performance of the Obligations,
including, without limitation, appointment of a receiver (and the Grantor hereby waives any
right to object to such appointment) and exercise of any of the Beneficiary's remedies
provided herein or in any other document evidencing, securing or relating to any of the •
Obligations or available to a secured party under the Uniform Commercial Code or under
other applicable law.
In addition, the Beneficiary shall have all other remedies provided by applicable law, including,
without limitation, the right to foreclose this Deed of Trust by civil action as a mortgage and to obtain (i) a
judicial sale of the Property or any portion thereof, and (ii) a judgment against Grantor for any deficiency
between the total amount of the Obligations and the purchase price of the Property at judicial sale.
The Grantor agrees and acknowledges that the acceptance by the Beneficiary of any payments
from either the Grantor or any guarantor after the occurrence of any Event of Default, the exercise by the
Beneficiary of any remedy set forth herein or the commencement, discontinuance or abandonment of
foreclosure proceedings against the Property shall not waive the Beneficiary's right to foreclose or
operate as a bar or estoppel to the exercise of any other rights or remedies of the Beneficiary. The
Grantor agrees and acknowledges that the Beneficiary, by making payments or incurring costs described
herein, shall be subrogated to any right of the Grantor to seek reimbursement from any third parties,
including, without limitation, any predecessor in interest to the Grantor's title or other party who may be
responsible under any law, regulation or ordinance relating to the presence or cleanup of Hazardous
Substances.
4.3 Advances. If the Grantor fails to pay or perform any of its obligations respecting the Property, the
Beneficiary may in its sole discretion do so without waiving or releasing Grantor from any such obligation.
Any such payments may include, but are not limited to, payments for taxes, assessments and other
governmental levies, water rates, insurance premiums, maintenance, repairs or improvements
constituting part of the Property. Any amounts paid by the Beneficiary hereunder shall be, until
reimbursed by the Grantor, part of the Obligations and secured by this Deed of Trust, and shall be due
and payable to the Beneficiary, on demand, together with interest thereon to the extent permitted by
applicable law, at the highest rate permitted under any of the notes evidencing the Obligations.
4.4 Cumulative Rights and Remedies. All of the foregoing rights, remedies and options (including
without limitation the right to enter and take possession of the Property, the right to manage and operate
the same, and the right to collect Rents, in each case whether by a receiver or otherwise) are cumulative
and in addition to any rights the Beneficiary might otherwise have, whether at law or by agreement, and
may be exercised separately or concurrently and none of which shall be exclusive of any other. The
Grantor further agrees that the Trustee and the Beneficiary may exercise any or all of its rights or
remedies set forth herein without having to pay the Grantor any sums for use or occupancy of the
Property.
4.5 Grantor's Waiver of Certain Rights. To the extent permitted by applicable law, the Grantor hereby
waives the benefit of all present and future laws (i) providing for any appraisal before sale of all or any
portion of the Property or (ii) in any way extending the time for the enforcement of the collection of the
Obligations or creating or extending a period of redemption from any sale made hereunder.
4.6 Transfer of Title. Upon the completion of any sale or sales of any Property, Trustee shall execute
and deliver to the accepted purchaser or purchasers a good and sufficient deed of conveyance or
assignment and transfer, lawfully conveying, assigning, and transferring the Property sold, but without any
covenant or warranty, express or implied.
4.7 Effect of Sale. Any sale or sales made by virtue of or under this Deed of Trust, whether under any
power of sale herein granted or through judicial proceedings, shall, to the fullest extent permitted by law,
operate to divest all right, title, estate, interest, claim, and demand whatsoever, either at law or in equity, of
Grantor in and to the property so sold, or any part thereof from, through or under Grantor, its successors
and assigns. The receipt by Trustee of such purchase money shall be full and sufficient discharge to any
purchaser of the Property or any part thereof sold as aforesaid for the purchase money, and no purchaser or
his representatives, grantees or assigns after paying such purchase money, shall be bound to see to the
application of such purchase money upon or for any trust or purpose of this Deed of Trust, or in any manner •
whatsoever be answerable for any loss, misapplication or non-application of any such purchase money or
be bound to inquire as to the authorization, necessity, expedience or regularity of any such sale.
4.8 Reconveyance. Upon written request of the Beneficiary and surrender of this Deed of Trust and
any Notes to Trustee for cancellation or endorsement, and upon payment of its fees and charges, Trustee
shall reconvey, without warranty, all or any part of the Property then subject to this Deed of Trust. Any
reconveyance, whether full or partial, shall be made to the person or persons legally entitled thereto, and
the recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof.
5. MISCELLANEOUS
5.1 Costs and Expenses. To the extent permitted by applicable law, the Grantor shall pay to the
Trustee and the Beneficiary, on demand, all reasonable expenses (including attorneys' fees and
expenses, including any fees incurred in any trial, appellate or Bankruptcy proceeding, and reasonable
consulting, accounting, appraisal, brokerage and similar professional fees and charges) incurred by the
Trustee and the Beneficiary in connection with the Trustee's and the Beneficiary's interpretation,
recordation of this Deed of Trust, exercise, preservation or enforcement of any of its rights, remedies and
options set forth in this Deed of Trust and in connection with any litigation, proceeding or dispute whether
arising hereunder or otherwise relating to the Obligations, together with interest thereon to the extent
permitted by applicable law, until paid in full by the Grantor at the highest rate set forth in any of the notes
evidencing the Obligations. Any amounts owed by the Grantor hereunder shall be, until paid, part of the
Obligations and secured by this Deed of Trust, and the Beneficiary shall be entitled, to the extent
permitted by law, to receive and retain such amounts in any action for a deficiency against or redemption
by the Grantor, or any accounting for the proceeds of a foreclosure sale or of insurance proceeds.
5.2 Indemnification Regarding Leases. The Grantor hereby agrees to defend, and does hereby
indemnify and hold the Beneficiary, Trustee, and each of their respective directors, officers, employees,
agents and attorneys (each an "Indemnitee") harmless from all losses, damages, claims, costs or
expenses (including attorneys' fees and expenses) resulting from the assignment of the Leases and from
all demands that may be asserted against such Indemnitees arising from any undertakings on the part of
the Beneficiary to perform any obligations under the Leases. Grantor shall not have any indemnifications
obligations hereunder if Beneficiary forecloses on the Property and by reason of such foreclosure Grantor
is no longer the legal owner of the Property unless any such losses, damages, claims, costs, or expenses
for which Indemnitees seeks indemnification arise out of or are connected with Grantor's conduct with
respect to the Property or any of the Leases. It is understood that the assignment of the Leases shall not
operate to place responsibility for the control or management of the Property upon the Beneficiary or any
Indemnitee or make them liable for performance of any of the obligations of the Grantor under Leases,
respecting any condition of the Property or any other agreement or arrangement, written or oral, or
applicable law.
5.3 Indemnification Regarding Hazardous Substances. The Grantor hereby agrees to defend, and
does hereby indemnify and hold harmless each Indemnitee from and against any and all losses,
damages, claims, costs or expenses, including, without limitation, litigation costs and attorneys' fees and
expenses and fees or expenses of any environmental engineering or cleanup firm incurred by such
Indemnitee and arising out of or in connection with the Property or resulting from the application of any
current or future law, regulation or ordinance relating to the presence or cleanup of Hazardous
Substances on or affecting the Property. The Grantor agrees its obligations hereunder shall be
continuous and shall survive termination or discharge of this Deed of Trust and/or the repayment of all
debts to the Beneficiary including repayment of all Obligations.
5.4 Indemnitee's Expenses. If any Indemnitee is made a party defendant to any litigation or any •
claim is threatened or brought against such Indemnitee concerning this Deed of Trust or the Property or •
any part thereof or therein or concerning the construction, maintenance, operation or the occupancy or
use thereof by the Grantor or other person or entity, then the Grantor shall indemnify, defend and hold
each Indemnitee harmless from and against ail liability by reason of said litigation or claims, including
attorneys' fees and expenses incurred by such Indemnitee in connection with any such litigation or claim,
whether or not any such litigation or claim is prosecuted to judgment. The within indemnification shall
survive payment of the Obligations, and/or any termination, release or discharge executed by the
Beneficiary in favor of the Grantor.
5.5 Waivers. The Grantor waives notice of nonpayment, demand, presentment, protest or notice of
protest of the Obligations and all other notices, consents to any renewals or extensions of time of
payment thereof, and generally waives any and all suretyship defenses and defenses in the nature
thereof. No delay or omission of the Beneficiary in exercising or enforcing any of its rights, powers,
privileges, remedies, immunities or discretion (all of which are hereinafter collectively referred to as "the
Beneficiary's rights and remedies") hereunder shall constitute a waiver thereof; and no waiver by the
Beneficiary of any default of the Grantor hereunder or of any demand shall operate as a waiver of any
other default hereunder or of any other demand. No term or provision hereof shall be waived, altered or
modified except with the prior written consent of the Beneficiary, which consent makes explicit reference
to this Deed of Trust. Except as provided in the preceding sentence, no other agreement or transaction,
of whatsoever nature, entered into between the Beneficiary and the Grantor at any time (whether before,
during or after the effective date or term of this Deed of Trust) shall be construed as a waiver,
modification or limitation of any of the Beneficiary's rights and remedies under this Deed of Trust (nor
shall anything in this Deed of Trust be construed as a waiver, modification or limitation of any of the
Beneficiary's rights and remedies under any such other agreement or transaction) but all the Beneficiary's
rights and remedies not only under the provisions of this Deed of Trust but also under any such other
agreement or transaction shall be cumulative and not alternative or exclusive, and may be exercised by
the Beneficiary at such time or times and in such order of preference as the Beneficiary in its sole
discretion may determine.
5.6 Waiver of Homestead. To the maximum extent permitted under applicable law, the Grantor
hereby waives and terminates any homestead rights and/or exemptions respecting the Property under the
provisions of any applicable homestead laws, including without limitation, ORS 23.240.
5.7 Joint and Several. If there is more than one Grantor, each of them shall be jointly and severally
liable for payment and/or performance of all obligations secured by this Deed of Trust and the term
"Grantor" shall include each as well as all of them.
5.8 Severability. If any provision of this Deed of Trust or portion of such provision or the application
thereof to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder
of this Deed of Trust (or the remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
5.9 Complete Agreement. This Deed of Trust and the other Loan Documents constitute the entire
agreement and understanding between and among the parties hereto relating to the subject matter
hereof, and supersedes ail prior proposals, negotiations, agreements and understandings among the
parties hereto with respect to such subject matter.
5.10 Binding Effect of Agreement. This Deed of Trust shall run with the land and be binding upon and
inure to the benefit of the respective heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto, and shall remain in full force and effect (and the Beneficiary shall be
entitled to rely thereon) until all Obligations are fully and indefeasibly paid_ The Beneficiary may transfer
and assign this Deed of Trust and deliver any collateral to the assignee, who shall thereupon have all of
the rights of the Beneficiary; and the Beneficiary shall then be relieved and discharged of any
responsibility or liability with respect to this Deed of Trust and such collateral. Except as expressly
provided herein or in the other Loan Documents, nothing, expressed or implied, is intended to confer
upon any party, other than the parties hereto, any rights, remedies, obligations or liabilities under or by
reason of this Deed of Trust or the other Loan Documents.
5.11 Notices. Any notices under or pursuant to this Deed of Trust shall be deemed duly received and
effective if delivered in hand to any officer or agent of the Grantor or Beneficiary, or if mailed by registered
or certified mail, return receipt requested, addressed to the Grantor or Beneficiary at the address set forth
in this Deed of Trust or as any party may from time to time designate by written notice to the other party.
5.12 Governing Law. This Deed of Trust shall be governed by Oregon law.
5.13 Reproductions. This Deed of Trust and all documents which have been or may be hereinafter
furnished by the Grantor to the Beneficiary may be reproduced by the Beneficiary by any photographic,
photostatic, microfilm, xerographic or similar process, and any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course of business).
5.14 Jurisdiction and Venue. The Grantor irrevocably submits to the nonexclusive jurisdiction of any
Federal or state court sitting in Washington and any Federal or state court sitting in Oregon, over any suit,
action or proceeding arising out of or relating to this Deed of Trust. The Grantor irrevocably waives, to
the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim
that the same has been brought in an inconvenient forum. The Grantor hereby consents to process being
served in any such suit, action or proceeding (i) by the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to the Grantor's address set forth herein or such other
address as has been provided in writing to the Beneficiary and (ii) in any other manner permitted by law,
and agrees that such service shall in every respect be deemed effective service upon the Grantor.
5.15 JURY WAIVER. THE GRANTOR AND THE BENEFICIARY EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY,AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING IN CONNECTION WITH THIS DEED OF TRUST, THE OBLIGATIONS, ALL MATTERS
CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B)
AGREE NOT TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CAN NOT BE, OR HAS NOT BEEN WAIVED. THE GRANTOR CERTIFIES THAT NEITHER
THE BENEFICIARY NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BENEFICIARY WOULD NOT IN THE
EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
EXECUTED as of the date first above written.
Grantor:
Nimbus Center Associates, LLC
By: 6_
I .
George H. Kill :n, ember
By:
Joseph W Angel II, Member ",�NOTA�fit
By: S' iy 4.?
Lynne I Angel, Member =n i pA. 1 +7
Off,
''''F, HAO 1',0%%
STATE OF 14,/
COUNTY OF GI c,—ILS , SS.
The foregoing instrument was acknowledged before me this 29 day of OC 40 b c , 20
by George H. Killian, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company, on
behalf of such Limited Liability Company.
m N M.& , NOTARY PUBLIC
MY COMMISSION EXPIRgS: I, 20)0
m
TYPE OR PRINT NAME
STATE OF
COUNTY OF , SS.
The foregoing instrument was acknowledged before me this _ day of , 20_,
by Joseph W Angel II, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company,
on behalf of such Limited Liability Company.
, NOTARY PUBLIC
MY COMMISSION EXPIRES'
TYPE OR PRINT NAME
EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
EXECUTED as of the date first above written.
Grantor:
Nimbus Center Associates, LLC
By:
George H. Kill':n, M-'ober
• -•- f Angel II, Mem.-r
By:
Lynne I Angel, Member
STATE OF
COUNTY OF , SS.
The foregoing instrument was acknowledged before me this _ day of , 20 ,
by George H. Killian, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company, on
behalf of such Limited Liability Company.
, NOTARY PUBLIC
MY COMMISSION EXPIRES:
TYPE OR PRINT NAME
STATE OF O F Z i
COUNTY OF f JL.," OMAt-+ , SS.
The foregoing instrument was acknowledged before me this 31 day of cr7 , 2Offig
by Joseph W Angel II, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company,
on behalf of such Limited Liability Company.
OFFICIAL SEAL N T RY PUBLIC
TRINA GUINN OMMISSI IBES:
a NOTARY PUBLIC-M(30N 'N
; ' COMMISSION NO.388575 TYPE OR PRINT NAME
MY COMMISSION EXPIRES JANUARY 13,2009
EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
EXECUTED as of the date first above written.
Grantor:
Nimbus Center Associates, LLC
By:
George H. Killian, Member
By:
Joseph W Angel II, Member
Lynn el, Member
STATE OF
COUNTY OF , SS.
The foregoing instrument was acknowledged before me this _ day of , 20 ,
by George H. Killian, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company, on
behalf of such Limited Liability Company.
, NOTARY PUBLIC
MY COMMISSION EXPIRES:
TYPE OR PRINT NAME
STATE OF
COUNTY OF , SS.
The foregoing instrument was acknowledged before me this day of , 20 ,
by Joseph W Angel II, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company,
on behalf of such Limited Liability Company.
, NOTARY PUBLIC
MY COMMISSION EXPIRES:
TYPE OR PRINT NAME
STATE OF ft'AP )��
COUNTY OF rn�A a G, , SS.
The fdregoing instrument was acknowledged before me this�� day of CCA,1761--- , 2013,
by Lynne I Angel, Member of Nimbus Center Associates, LLC, an Oregon Limited Liability Company, on
behalf of such Limited Liability Company.
, N.TARY PUBLIC
MY COMMI 1 ON : PIRES: : c;-7 a a✓
TYPE PRINT NAME
OFFICIAL SEAL
LYKE
W
NOTARY PUBLICOREGON
COMMISSION NO.430936
MY COMMISSION EXPIRES AUGUST 27,2012
LEGAL DESCRIPTION
A leasehold interest in the following described property:
A tract of land situated in the Northeast one-quarter, Section 34, Township 1 South, Range 1 West,
Willamette Meridian,,in the City of Tigard, County of Washington and State of Oregon, being a portion of
IKOLL BUSINESS CENTER,TIGARD, more particularly described as follows:
Beginning at the Southeast corner of Lot 1 of said IKOLL BUSINESS CENTER, TIGARD, said point also
being on the Southwesterly right of line of SW Nimbus Avenue;thence along said line and along a 230 foot
radius curve to the right(chord bears North 34°35'26" West,33.39 feet), a distance of 33.42 feet to a point of
tangency; thence continuing along said line,North 30°25'38" West, 224.11 feet;thence North 75°25'05"
West, 67.87 feet to a point on the Southeasterly right of line of SW Scholls Ferry. Road(County Road 348);
thence along said Southeasterly right of way line, South 593578" West, 380.65 feet; thence South 75°25'38"
East, 119.82 feet to a point on the Westerly line of Tract A of said IKOLL BUSINESS CENTER, TIGARD;
thence along the Westerly line of said Tract A, South 29°49'08" East, 64.85 feet; thence continuing along the
Westerly line of said Tract A, South 74°49'08" East,232.25 feet; thence North 59°25'38" East, 69.02 feet;
thence South 75°25'38" East, 132.20 feet; thence North 59°34'22" East, 64.59 feet to a point on the Southerly
right of way line of said SW Nimbus Avenue; thence along said Southerly right of way line, along a 230.0
foot radius curve to the right(chord bears North 52°4878" West, 111.72 feet),a distance of 112.85 feet to the
point of beginning_
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9014710032.rdw
EXHIBIT"B"
Permitted Encumbrances
NONE
MBM
Nimbus Center PROPERTIES,INC.
SW Scholls Ferry Road & Nimbus Ave., Tigard, OR
RECEIVED
FEB 012016
CITY OF TIGARDMIL ER
PLANNING/ENGINES, NG C ) PAINT
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Approved by la ning
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Initials:
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SERVICES
LLC
FIRST CLASS REAL ESTATE SOLUTIONS
RECEIVED
January 28, 2016 FEB 0 1 2016
CITY OF TIGARD
PLANNING/ENGINEERING
To: City of Tigard
From: Nimbus Center Associates, LLC
RE: Nimbus Shopping Center—10115 5W Nimbus Ave,Tigard, OR 97223
As requested please accept this application for a Minor Modification due to the change of use for a new
tenant at the center who will be occupying suites 200 and 250 combined. The new tenant will be I Love
Kick Boxing.
The former tenants were Nimbus Cleaners in suite 200 and a coffee shop in suite 250. Please find the
attached Parking Calculation worksheet that verifies that Nimbus Shopping Center is under the required
parking ratios with this change of use from retail/fast food to entertainment. I also noted that if we
were to fill our one vacancy with a replacement retail tenant we would still be under the required
parking ratio of 93 stalls by having 79.
Please note that we were granted a 20% parking variance in 2013. I have attached the Notice of Type II
Decision for your convenience.
Please feel free to call if you have any further questions.
360-597-7040
2501 SE COLUMBIA WAY I SUITE 240 I VANCOUVER, WA 198661 I T: 360.693.3644 I r: 360.693.1833 I w: fcservicesllc.com
Nimbus Center - Parking Calculation
Category Previous New
Restaurant: FSR 15.3 9
Restaurant: QSR 9.9 7
Bank 4.3 3 Total Parking Stalls 93
Personal Services 3.7 2.5
Entertainment 4.3
Retail 3.7 3
Adopted Nimbus Required Parking-Current Occupancy
IIIIESII Parking New New
SQ.FT. % Category Ratio Count City SF Per 1000 park Adjust Total Required
150 Shiraz 582 2.17% QSR 7 4.1
200 I Love Kick Boxing 2,707 10.11% Entertainment 4.3 11.6 Retail 9,256 3 27.8 100% 27.8
350 Gentle Dental 2,894 10.81% Med Oft 3.9 11.3 Fast Food 7,009 7 49.1 85% 41.7
500 Express Personnel 2,023 7.56% Pers Sery 2.5 5.1 Pers Sery 3,348 2.5 8.4 60% 5.0
600 Two Rivers/Cartrag. 861 3.22% Retail 3 2.6 Med Off 2,894 3.9 11.3 70% 7.9
700 Jet Set Coffee 1,260 4.71% QSR 7 8.8 Entertainment 2,707 4.3 11.6 100% 11.6
800 Image Nail 1,325 4.95% Pers Sery 2.5 3.3 25,214 94.0
850 Bellagio's 1,445 5.40% QSR 7 10.1
BK Burger King 3,722 13.91% QSR 7 26.1
900 Miller Paint 5,081 18.98% Retail 3 15.2
101 Filling Station 3,314 12.38% Retail 3 9.9
Nimbus Required Parking-100%Occupied
City SF Per 1000 park Adjust Total Required
TOTAL LEASED 25,214 94.21% 108
Retail 10,806 3 32.4 100% 32.4
AVAILABLE SQ.FT. % Fast Food 7,009 7 49.1 85% 41.7
Pers Sery 3,348 2.5 8.4 60% 5.0
400 Available(Retail) 1,550 5.8% Retail 3 3 Med Off 2,894 3.9 11.3 70% 7.9
0 0.0% - - Entertainment 2,707 4.3 11.64 100% 11.6
0 0.0% - - 26,764
98.7
TOTAL AVAILABLE 1,550 5.79% 3
Variance 20% 78.9
TOTAL PROJECT SPACE 26,764 100.00%
RECEIVED
FEB 0 12016
CITY OF TIGARD
PLANNING/ENGINEERING
RECEIVED
FEB 0 1 2016
CITY OF TIGARD
PLANNING/ENGINEERING
NOTICE OF TYPE II DECISION
ADJUSTMENT (VAR) 2013-00002
NIMBUS CENTER PARKING ADJUSTMENT
TIGARD
120 DAYS = 11/26/2013
SECTION I. APPLICATION SUMMARY
FILE NAME: NIMBUS CENTER PARKING ADJUSTMENT
CASE NO.: Variance (VAR) VAR2013-00007
PROPOSAL: The applicant has requested a twenty percent (20%) parking reduction to the minimum
parking requirements for existing and future businesses located at the Nimbus Center
(corner of Scholls Ferry Road and Nimbus Avenue).
OWNER: Constance A. Robinson APPLICANT: Nimbus Center Associates,LLC
12000 SW View Crest Ct. Killian Pacific LLC
Tigard, OR 97224 500 E Broadway,Suite 110
Vancouver,WA 95993
LOCATION: 10115 SW Nimbus Avenue,WCTM 1S134AA,Tax Lots 1900
ZONE: MUE-1 and MUE-2: Mixed Use Employment Districts. The MUE-1 and 2 zoning
district is designed to apply to areas where employment uses such as office, research and
development, and light manufacturing are concentrated. Commercial and retail support
uses are allowed but are limited, and residential uses are permitted which are compatible
with the employment character of the area. Lincoln Center is an example of an area
designated MUE-1,the high density mixed use employment district.
APPLICABLE Community Development Code Section 18.370.020.C.6.c.
APPROVAL
CRITERIA:
SECTION II. DECISION
Notice is hereby given that the City of Tigard Community Development Director's designee has APPROVED
the above request for a 20% parking reduction to the minimum parking requirements for current and future
uses within the existing Nimbus Center development. The findings and conclusions on which the decision is
based are noted in Section V.
1'AR2013-Oo E7/NIMBUS(].NTI R PARKING.ADJUSTMENT PAGE 1 OF 5
SECTION III. BACKGROUND INFORMATION
Site&Vicinity Information:
The 2.42 acre site is located on the south side of SW Nimbus Avenue at the intersection of SW Scholls
Ferry Road. Nimbus Center is a 26,279 square foot multi-tenant shoving center with a mix of retail,
restaurants, medical offices, and personal services. The site is zoned MLE-2 (Mixed Use Employment 2)
and located in the Washington Square Regional Center, as are properties to the east across Nimbus Avenue.
Fanno Creek and residential uses can be found south of the site. Zoning is a mix of low and medium
density residential (R-4.5 and R-12). The City of Beaverton is north of the site across Scholls Ferry Road,
which is the boundary between the two cities.
Site History
Nimbus Center was approved as part of the Koll Business Center (ZC 23-78, ZC 26-78, CU 33-78, and
SDR 8-80); however, construction did not materialize on this site. Koll Business Center is the collection of
buildings lying north of Nimbus Avenue. At the Nimbus Center, the main building on the southern portion
of the site was approved in 1985 (SDR 2-85) and the Burger King restaurant in 1986 (SDR5-86). A Minor
Modification to add a drive-through facility for a bank was approved in 2005 (MMD2005-00006). This
minor modification eliminated three parking spaces; however the minimum parking requirement was not
addressed within that decision.
Zoning at the time of original approval was I-P (Industrial Park), which limited the square footage in the
center to the following uses: personal services, day care, eating and drinking establishments, and retail sales.
The zoning was changed to MUE-2 with the adoption of the Washington Square Special Planning Area.
Size restrictions for uses have been eliminated or increased with the new zoning. No other land use cases
were found in a search of city records.
Over the last year approximately 6,600 square feet of space has not been leased because city minimum
parking requirements could not be met for interested uses. This has been an issue at several multi-tenant
developments throughout the city. To address the issue, the applicant requested a code amendment in early
2013 (DCA2013-00001) to lower the minimum parking requirements for certain uses (sales-oriented retail,
eating and drinking establishments, and drive through banks). That request was approved on May 14, 2013
as amended by City Council (Ordinance 13-07)
Proposal Description
The applicant is now requesting a site specific adjustment for a 20% reduction to minimum parking
requirements for current and future uses at the Nimbus Center based on their current parking demand. The
applicant is currently turning away prospective tenants because of the minimum parking requirements.
SECTION IV. COMMENTS FROM PROPERTY OWNERS WITHIN 500 FEET
The Tigard Community Development Code requires that property owners within 500 feet of the subject site
be notified of the proposal, and be given an opportunity for written comments and/or oral testimony prior
to a decision being made. Staff received no comments from those notified.
SECTION V. APPLICABLE REVIEW CRITERIA AND FINDINGS
A. MINIMUM PARKING ADJUSMENT
Section 18.3070.020.C.6 states that the director may authorize up to a 20% reduction in the total
minimum vehicle parking spaces required in Section 18.765.070.H when an applicant for a
development permit can demonstrate in a parking study prepared by a traffic consultant or in
parking data from comparable sites that:
i. Use of transit, demand management programs, and/or special characteristics of the
customer, client employee or resident population will reduce expected vehicle use
and parking space demand for this development, as compared to standards Institute
of Transportation Engineers (ITE) vehicle trip generation rates and minimum city
parking requirements; and
VAR2013-XXX 7/NIMBUS CENTER PARKING ADJUSTMENT PAGE 2 OF 5
The applicant has submitted a parking study prepared by Kittleson & Associates that demonstrates that
special characteristics of the customer, client, and employee population have a reduced parking demand at
this development. The applicant's study states that the Nimbus Center has 93 parking spaces.Therefore, the
mix of tenants can require no more than 93 spaces for 26,279 square feet of occupied space (functionally
3.53 per 1,000 square feet). The parking demand study was completed by a traffic engineer based upon
recent parking counts at the site for the current mix of tenants. The engineer calculates a peak parking
demand of 3.3 spaces per 1,000 square feet of building. With the proposed reduction, the site could meet a
parking demand for 3.53 spaces per 1,000 of building with a fully occupied building (26,279 square feet)
with a mix of uses similar to existing tenants. Therefore, the applicant has shown the parking demand for
the existing development is less than the minimum number of spaces required by the city based on Table
18.765.2.
ii. A reduction in parking will not have an adverse impact on adjacent uses.
Information submitted by the applicant,including a parking demand study, concludes that parking demand
can be accommodated on-site and will not adversely impact adjacent streets or neighboring uses. In
addition to parking demand, there are site specific characteristics that lessen the likelihood of off-site
impacts. Transit is available along Scholls Ferry Road with a bus stop adjacent to the center. The site is a
corner lot which abuts Fanno Creek, wetlands and a public park. No parking is permitted on the adjacent
streets. Parking provided for adjacent commercial uses is found across Nimbus Avenue or on Scholls Ferry
Road. The nearest public residential street is south of the site, across Fanno Creek; about a quarter mile
walking distance from the center businesses.
Upon review of the proposal, the Tigard Senior Transportation Planner and Transportation Engineer
recommended imposing conditions to ensure parking will be accommodated on-site to limit off-site impacts
(see Staff& Agency Comments section below). These conditions cannot be justified based on the approval
criteria and cannot be imposed. However, that does not mean the property owner and tenants do not need
to be concerned with off-site parking by customers and employees. The applicant should be aware that
section 18.230.060 — Abatement of Violations - states any development which occurs contrary to any
approval issued or granted under this title is unlawful and may be abated by appropriate proceedings.
FINDING: Based on the information provided, the requested 20% reduction to minimum
parking requirements at the existing Nimbus Center meets parking demand for a
typical use mix found in the existing development and willnothave an adverse
impact on adjacent uses. The approval criteria have been satisfied.
B. IMPACT STUDY
Section 18.390.040.B.2.e states that the applicant shall provide an impact study to quantify the effect
of development on public facilities and services. For each public facility system and type of impact,
the study shall propose improvements necessary to meet City standards, and to minimize the
impact of the development on the public at large, public facilities systems, and affected private
property users.
The applicant has provided a study that shows the proposed minimum parking reduction will not impact
parks, sewer systems, water system, transportation system, or create excessive noise. As shown above,
adequate parking will be provided on-site. Therefore, vehicles will not stack in the adjacent streets while
waiting for parking spaces to become available. In addition, the access drive to Nimbus Center is
approximately 200 feet from the intersection with Scholls Ferry Road; therefore not impacting traffic flow at
that intersection.
\'AR 13-(xxx7/Ntnf8us CENTER PARKING AQIUSTMENT r.NC;i:3 OF 5
SECTION VI. OTHER STAFF &AGENCY COMMENTS
A request for comments was sent to Tigard Public Works Department, City of Beaverton, Washington
County, and Tualatin Valley Fire and Rescue. The following comments were received:
Judith Gray, Tigard Senior Transportation Planner reviewed the proposal and the parking analysis
prepared by Kittleson & Associates. She commented that the information and findings in the report are
sufficient to support approval of the reduction. Even if fully leased with a similar mix of tenants, peak
parking demand could be accommodated onsite. However, the conditions will be sensitive to specific
tenants. Some businesses of the same use category could be busier than others,but this is a variable beyond
the City's control. Peak period also appears to be during weekday lunch hours; during most other hours
parking would be more than adequate. The main concerns of safety or congestion at the vehicle access and
spillover parking impacting nearby streets or properties are not significant concerns based on the site
location and design.
Although Ms. Gray stated that the reduction could be approved without negatively impacting neighboring
properties based on the information provided, she recommended the following requirements/strategies to
mitigate any potential off-site impacts: 1) state that the property owner and tenants shall seek to
accommodate all parking demand on-site, 2) if it cannot be accommodated on-site, then a parking
management plan must be developed that includes a written agreement with neighboring properties for
shared parking,transit passes,or promote shared or non-auto travel for employees.
Mike McCarthy, Tigard Transportation Engineer, noted that based on an observation and aerial
photographs parking is at a premium in this center even with the current mix of tenants and vacancies.
Parking may spill over to nearby developments or streets. If approved, the recommended conditions should
include that employees are not required to park off-site unless shared parking agreements are in place and
that the adjustment may be rescinded if problems develop due to inadequate on-site parking. These
problems could include queue spillback onto public streets, business related parking in residential
neighborhoods, or unauthorized on nearby properties.
Naomi Vogel, Washington County Associate Planner stated that any work within Scholls Ferry Road
requires a permit from Washington County as it is a county facility. The applicant has not proposed any
street work with this application.
John Wolff, Deputy Fire Marshal,has reviewed the proposal and has no objections.
SECTION VIII. PROCEDURE AND APPEAL INFORMATION
Notice:
Notice was mailed to:
X. The applicant and owners
X Owner of record within the required distance
X Affected government agencies
Final Decision:
THIS DECISION IS FINAL ON OCTOBER 10,2013 AND BECOMES
EFFECTIVE ON OCTOBER 11,2013 UNLESS AN APPEAL IS FILED.
eeaal:
The decision of the Director (Type II Procedure) or Review Authority (Type II Administrative Appeal or Type
III Procedure)is final for purposes of appeal on the date that it is mailed. Any party with standing as provided
in Section 18.390.040.G.1. may appeal this decision in accordance with Section 18.390.040.G.2. of the Tigard
Community Development Code which provides that a written appeal together with the required fee shall be
filed with the Director within ten (10) business days of the date the notice of the decision was mailed. The
appeal fee schedule and forms are available from the Planning Division of Tigard City Hall, 13125 SW Hall
Boulevard,Tigard,Oregon 97223.
vAB22U13-IKM07/NIMBUS CENTER PARKING.AI)JUs1'41ENT PAGE 4 OF 5
Unless the applicant is the appellant, the hearing on an appeal from the Director's Decision shall be confined to
the specific issues identified in the written comments submitted by the parties during the comment period.
Additional evidence concerning issues properly raised in the Notice of Appeal may be submitted by any party
during the appeal hearing, subject to any additional rules of procedure that may be adopted from time to time
by the appellate body.
THE DEADLINE FOR FILING AN APPEAL IS AT 5:00 PM ON OCTOBER 10,2013.
Questions:
If you have any questions, please call the Cheryl Caines with the City of Tigard Planning Division, Tigard City
Hall, 13125 S\X'Hall Boulevard,Tigard,Oregon at (503) 718-2437.
ejtu,LivC Q. Cwt/4_, September 25.2012
PREPARED BY: Cheryl Caines DATE
Associate Planner
-
ff September 25.2012
APPROVET) BY: Tom McGuire DATE
Asst. Community Development Director
v.uu(t13-o oo7/NIMIAUS CENTER P\RKINU ADJUSTMENT
PAGE 5 01,5
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CITY OF TIGARD
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