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HomeMy WebLinkAbout2007-10-05-Resolutions 07-209_LA Grant Pkwy Paving - Ashworth to 312th - Development AgrTHE CITY OF WAUKEE,IOWA RESOLUTION 07-209 RESOLUTION APPROVING A DEVELOPERS AGREEMENT AND LIEN/MORTGAGE SECURING PROPERTY OWNERS PORTION OF THE COSTS ASSOCIATED WITH THE LA GRANT /V A VENUE IMPROVEMENTS IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,preliminary improvements are being undertaken by the City on LA GrantIV Avenue;AND WHEREAS,the preliminary improvements include grading,street paving,and the installation of tum lanes at the intersections of LA GrantN Avenue with Ashworth,Dallas County Iowa,in accordance with design specifications approved by the City;AND WHEREAS,the Waukee Community School District (hereinafter referred to as "Property Owner")is the owner of certain property adjacent to said street whose property will benefit from the improvements which is legally described as: The West 20 Acres of Government Lot 13 in section 4,Township 78 North, Range 26 West ofthe 5th P.M.,Waukee,Dallas County,Iowa;AND WHEREAS,in order to assist and induce the City to undertake the improvements Property Owner has agreed to make payment to the City in the amount of $174,278.16 on or before July 1, 2008,or upon the sale or transfer of the property,whichever shall first occur,and in consideration of said payment the City agrees to commence the improvements said obligations to be secured by a Developers Agreement and lien/Mortgage securing payment by Property Owner, said agreement is attached hereto as Exhibit A and incorporated herein by this reference. BE IT THEREFORE RESOLVED by the City Council of the City of Waukee on this 5th day of October,2007,that the agreement attached as Exhibit A,submitted by the owner of the property described above,securing their obligation to the City in connection with the V Avenue/LA Grant improvements should be and the same is hereby approved. BE IT FURTHER RESOLVED the City Clerk shall cause the original to be recorded upon the property by submitting the original to the Dallas County Recorder's office with the appropriate recording fees. Attest: .ooistra,City Administrator/Clerk ROLL CALL VOTE Donald L.Bailey,Jr. Isaiah McGee JeffV.Mertz Darlene Stanton Mike Watts AYE X NAY X X ABSENT X X Exhibit A DEVELOPERS AGREEMENT THIS AGREEMENT is made and entered into by and between the City of Waukee,Iowa (hereinafter referred to as the "City"),and The Waukee Community School District (hereinafter referred to as the "Property Owner"):. WHEREAS,the Property Owner are the owners of tract of real estate legally described in Exhibit A attached hereto (the "Property");and WHEREAS,the property owner has acquired the property in anticipation of the construction of educational facilities on the property and has asked the City to undertake preliminary improvements on the roadway adjacent to the property known as LA GrantlV avenue;and WHEREAS,the preliminary improvements contemplated hereunder include grading, street paving,and the installation of turn lanes at the intersections of LA GrantIV avenue with Ashworth,Dallas County Iowa,in accordance with design specifications approved by the City, in its sole discretion;and WHEREAS,in order to assist and induce the City to undertake the improvements to the Waukee Community School District has agreed to make payment to the City in the amount of $174,278.16 on or before July,1,2008 and in consideration of said payment the City agrees to commence the improvements;and WHEREAS,Property Owner and the City wish to set forth their agreements with respect to the payment by property owner to the City related to said preliminary improvements. NOW,THEREFORE,IT IS AGREED AMONG THE PARTIES HERETO AS FOLLOWS: 1.In consideration of the inducements,representations and payments contemplated pursuant to this agreement,the City of Waukee shall have the right to cause the improvements to be constructed to LA GrantIV A venue in accordance with such plans and specifications as it shall deem appropriate.The construction of the improvements shall be under the supervision of an engineer to be selected by the City. 2.The Property Owner agrees to pay unto the City of Waukee the sum of $174,278.16 dollars on or before July 1,2008 representing its payment for its share of the improvements undertaken by the City as Part of the improvement project anticipated to include grading,street paving and the construction of a tum lane.Said payment shall be due on or before said date and in the event payment is not made unto the City property owner shall be considered in default of its obligations herein.Upon default interest shall accrue at the rate of 18%per anmnn on any balances that remain unpaid until satisfied. 3.Security Interest.Property Owners hereby sell,convey and mortgage unto the City of Waukee,Iowa,and grant a security interest to the City of Waukee,Iowa in the following described property: 1 a.Land and Buildings.All of Property Owner'right,title and interest in and to the following described real estate situated in Dallas County,Iowa (the "Land"); The West 20 Acres of Government Lot 13 in section 4,Township 78 North, Range 26 West of the sth P.M.,Waukee,Dallas County,Iowa. j and all buildings,structures and improvements now standing or at any time hereafter constructed or placed upon the Land (the "Buildings"),including all hereditament,easements,appurtenances, riparian rights,mineral rights,water rights,rights in and to the lands lying in streets,alleys and roads adjoining the land,estates and other rights and interests now or hereafter belonging to or in any way pertaining to the Land. b.Personal Prooertv.All fixtures and other personal property integrally belonging to,or hereafter becoming an integral part of the Land or Buildings.whether attached or detached,including but not limited to,light fixtures,shades,rods,blinds,Venetian blinds, awnings,storm windows,screens,linoleum,water softeners,automatic heating and air- conditioning equipment and all proceeds,products,increase,issue,accessions,attachments, accessories,parts,additions,repairs.replacements and substitutes of,to,and for the foregoing (the "Personal Property").The City of Waukee agrees to design and cause to be constructed improvements to LA Grant and V avenue in Waukee and Dallas County Iowa in accordance with the design specifications approved by the City of Waukee,as may be amended from time to time, in the City's sole discretion. 4.Obligations.This Mortgage secures the following (hereinafter collectively referred to as the "Obligations"): a.The obligation of property owner established in paragraph I herein and any renewals,extensions,modifications or refinancing thereof and any promissory notes issued in substitution therefore;and b.All other obligations of Property Owners to City of Waukee,now existing or hereafter arising,whether direct or indirect,contingent or absolute and whether as maker or surety,including,but not limited to,future advances and amounts advanced and expenses incurred by City of Waukee pursuant to this mortgage. s.Representations and Warranties of Property Owner.Property Owner represent, warrant and covenant to City Of Waukee that (i)Property Owner hold clear title to the Mortgaged Property and title in fee simple in the Land;(ii)Property Owner have the right,power and authority to execute this Mortgage and to mortgage,and grant a security interest in the Mortgaged Property;(iii)the Mortgaged Property is free and clear of all liens and encumbrances, except for real estate taxes not yet delinquent and except as otherwise stated in subparagraph I a. herein;(iv)Property Owner will warrant and defend title to the Mortgaged Property and the lien and priority of this Mortgage against all claims and demands of all persons,whether now existing or hereafter arising;and (v)all buildings and improvements now or hereafter located on the Land are,or will be,located entirely within the boundaries of the Land. 2 6.Protection of City Of Waukee's Security.If Property Owners fail to perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the City of Waukee therein, or the title thereto,then City of Waukee,at City of Waukee's option,may perform such covenants and agreements,defend against or investigate such action or proceeding,and take such other action as City of Waukee deems necessary to protect City of Waukee's interest.Any amounts or expenses disbursed or incurred by City of Waukee with interest thereon at the rate of 18%per annum,shall become an Obligation of Property Owners secured by this Mortgage.Such amounts advanced or disbursed by City of Waukee hereunder shall be immediately due and payable by Property Owners unless Property Owners and City of Waukee agree in writing to other terms of repayment.City of Waukee shall,at its option,be subrogated to the lien of any mortgage or other lien discharged in whole or in part by the Obligations or by City of Waukee under the provisions hereof,and any such subrogation rights shall be additional and cumulative security for this Mortgage.Nothing contained in this paragraph shall require City of Waukee to incur any expense or do any act hereunder,and City of Waukee shall not be liable to Property Owners for any damage or claims arising out of action taken by City of Waukee pursuant to this paragraph. 7.Events of Default.Each of the following occurrences shall constitute an event of default hereunder ("Event of Default"): a.Property Owners shall default in the due observance or performance of or breach its agreement concerning payment of its obligations or shall default in the due observance or performance of or breach any other covenant,condition or agreement on its part to be observed or performed pursuant to the terms of this Mortgage. b.Property Owners shall make an assignment for the benefits of its creditors, or a petition shall be filed by or against Property Owners under the United States Bankruptcy Code or Property Owners shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of a material part of its properties or of the Mortgaged Property or shall not,within thirty (30)days after the appointment of a trustee,receiver or liquidator of any material part of its properties or of the Mortgaged Property,have such appointment vacated. c.A judgment,writ or warrant of attachment or execution,or similar process shall be entered and become a lien on or be issued or levied against the Mortgaged Property or any part thereof which is not released,vacated or fully bonded within thirty (30)days after its entry,issue or levy. d.An event of default,however defined,shall occur under any other mortgage,assignment or other security document constituting a lien on the Mortgaged Property or any part thereof. 8.Attorneys'Fees.Property Owner shall pay on demand all costs and expenses incurred by City Of Waukee in enforcing or protecting its rights and remedies hereunder, including,but not limited to,reasonable attorneys'fees,legal expenses and costs. 3 9.Foreclosure.Upon the occurrence of any Event of Default and at any time thereafter while such Event of Default exists,City Of Waukee may,at its option,after such j' notice as may be required by law,exercise one or more ofthe following rights and remedies (and any other rights and remedies available to it): a.City Of Waukee may declare immediately due and payable all Obligations secured by this Mortgage,and the same shall thereupon be immediately due and payable,without further notice or demand. b.City Of Waukee shall have and may exercise with respect to the Personal Property,all the rights and remedies accorded upon default to a secured party under the Iowa Uniform Commercial Code.If notice to Property Owner of intended disposition of such property is required by law in a particular instance,such notice shall be deemed commercially reasonable if given to Property Owner at least ten (10)days prior to the date of intended disposition. c.City Of Waukee may (and is hereby authorized and empowered to) foreclose this Mortgage in accordance with the law of the State ofIowa,and at any time after the commencement of an action in foreclosure,or during the period of redemption,the court having jurisdiction of the case shall at the request of City Of Waukee appoint a receiver to take innnediate possession of the Mortgaged Property and of the Revenues and Income accruing therefrom,and to rent or cultivate the same as he may deem best for the interest of all parties concerned,and such receiver shall be liable to account to Property Owner only for the net profits, after application of rents,issues and profits upon the costs and expenses of the receivership and foreclosure and upon the Obligations. 10.Forbearance not a Waiver,Rights and Remedies Cumulative.No delay by City Of Waukee in exercising any right or remedy provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or remedy,and no waiver by City Of Waukee of any particular provisions of this Mortgage shall be deemed effective unless in writing signed by City Of Waukee.All such rights and remedies provided for herein or which City Of Waukee or the holder of the Obligations may have otherwise,at law or in equity,shall be distinct,separate and cumulative and may be exercised concurrently, independently or successively in any order whatsoever,and as often as the occasion therefore arises. 11.Severability.If any provision hereof is for any reason unenforceable or inapplicable,the other provisions hereof will remain in full force and effect in the same manner as if such unenforceable or inapplicable provisions had never been contained herein. 12.Governing Law.This Agreement shall be governed by and construed III accordance with the laws ofthe State ofIowa. 13.Effective.This Agreement is subject to and contingent upon approval by the Waukee City Council.In the event the Waukee City Council does not approve this agreement, this Agreement shall be null and void. 4 14.Release of Rights of Dower,Homestead and Distributive Share.Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and to the Mortgaged Property and waives all rights of exemption as to any of the Mortgaged Property 15.Recording.This Agreement shall be recorded with the Dallas County,Iowa, Recorder and shall constitute a lien on the property until the recordation of a valid release executed by the Mayor after approval of the City Council by resolution. DATED as of $1l:..n:M.6L....2::;' THE CITY OF WAUKEE,10 A By: Attest:J(.ll .........U. SIGNATURES OF LIENHOLDERS 5 EXHIBIT A -LEGAL DESCRIPTION The West 20 Acres of Government Lot 13 in section 4,Township 78 North,Range 26 West of the 5th P.M.,Waukee,Dallas County,Iowa. j I 6