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HomeMy WebLinkAbout2008-234 Agrmt - Verde Village Development AGREEMENT FOR CONSTRUCTION OF REQUIRED IMPROVEMENTS AND INSTALLATION AND MAINTENANCE OF PLANT MATERIALS This Agreement by and between Ashland Flower Shop and Greenhouses, Inc., together with WILMA, LLC (development company), their successors and assigns, (hereinafter collectively referred to as the "OWNER/DEVELOPER "), and the City of Ashland, a municipal co~oration located and being in Jackson County, Oregon, (hereinafter referred to as the "CITY"); WITNESSETH WHEREAS, the Ashland Flower Shop and Greenhouses, Inc. is the current Owner of Verde Village, a Planned Community within the City of Ashland, Jackson County Oregon; and WHEREAS, WILMA, LLC is the development company acquiring Verde Village; and WHEREAS, on December 20th 2007 OWNER/DEVELOPER received from the City of Ashland approval of an Ordinance approving the Verde Village Development Agreement, a land use decision, including but not limited to approval of a real property exchange, annexation, comprehensive plan amendment, zoning map amendment, outline plan approval, street exception, physical and environmental constraints permit and tree removal permit; Verde Village Agreement for Required Improvements and Installation on Plant Materials 4 -_.~---_._..---, WHEREAS, property to be conveyed to the CITY for parks purposes (hereinafter Park Corridor) pursuant to the above referenced approvals is more particularly described in Exhibit" A" attached hereto and made a part hereof by this reference; WHEREAS, prior to or concurrent with the exchange property to the City, OWNER/DEVELOPER is required by the Verde Village Development Agreement, [Section 16, as well as Exhibit G and Exhibit E, Conditions 5, and 17], to enter into this Agreement and to provide financial security for the construction of a multi-use path on the Park Corridor as well as to provide for the restoration and enhancement of the Park Corridor riparian areas and areas disturbed by the path construction; NOW THEREFORE, in consideration of the mutual promises contained herein, OWNER/DEVELOPER and CITY agree as follows: 1. The above recitations are true and correct and are incorporated herein by this reference; and 2. The OWNER/DEVELOPER shall obtain approval of a Final Plan for construction of the multi-use path on the Park Corridor as well as approval of the riparian restoration and enhancement plan (hereinafter "required improvements" and "required plant materials") on or before July 17, 2009 consistent with Exhibit F of Verde Village Agreement for Required Improvements and Installation on Plant Materials 5 -~- --- T the Verde Village Development Agreement and all other terms and conditions of the Development Agreement and associated approvals. 3. The OWNER/DEVELOPER shall construct or cause to be constructed the required improvements on the Park Corridor in accordance with approved plans, this Agreement and the Verde Village Development Agreement and associated approvals. 4. The OWNER/DEVELOPER shall install the required plant materials, including the required restoration and enhancement of the riparian areas and disturbed areas in accordance with approved plans, this Agreement and the Verde Village Development Agreement and associated approvals 5. OWNER/DEVELOPER, its licensed Contractors and professionals, are expressly granted permission to enter the City Park Corridor, identified in Exhibit A, pursuant to this Agreement and a separate license agreement, at reasonable times and may perform the work called for under this Agreement in accordance with approved plans, terms and conditions. The obligations of the Verde Village Development Agreement, a land use decision, including the obligations to construct the required improvements and installation of plant materials under this Agreement are land use conditions of approval. Consistent with the disclaimers in the Verde Village Development Agreement, incorporated herein by this reference, the Verde Village Agreement for Required Improvements and Installation on Plant Materials 6 --~---,~-- ---, OWNER/DEVELOPER, its Contractors and professionals are not the agents of the CITY and are solely responsible for construction of the required improvements and installation of required plant materials in accordance with all applicable federal, state and local regulations. 6. Constmction of the required improvements must be commenced no later than six (6) months after the date of Final Development Plan Approval and shall be completed no later than July 17, 2011. The OWNER/DEVELOPER, its representative or consultant shall certify, subject to City verification by the Ashland Public Works Director and Community Development Director, that the required improvements and plant materials have been installed by the time specified in the approved timetable of development. OWNER/DEVELOPER shall pay the any established inspection fees associated with City Engineering Department inspection of required improvements. 7. The OWNER/DEVELOPER by executing this Agreement, hereby warrants and guarantees the constmction of the required improvements and the survival of all required plant materials (at least 800/0 survival rate for plant materials) until two years after the city verifies that plant materials have been installed. Concurrent with execution of this Agreement, the OWNER/DEVELOPER is providing the City with financial security in form of a promissory note from WILMA, Verde Village Agreement for Required Improvements and Installation on Plant Materials 7 - ---, - LLC, the amount of $ 400,000, a true copy of which is set forth as Exhibit liB", attached hereto and made a part hereof by this reference. (Originals shall be maintained by the City Recorded. This promissory note will be replaced by another promissory note in the event the bids for the required improvements are less than $400,000. WILMA, LLC shall replace the Promissory Note or replacement promissory note, within 60 days of execution of this Agreement with a clean standby letter of credit, a bond, trust deed, or other security instrument in the above designated amount in a form acceptable to the City of Ashland Community Development Director and City Attorney. OWNER/DEVELOPER expressly agrees that failure to replace the promissory note with other approved security in the time provided is a breach of this Agreement and shall trigger revocation proceedings in accordance with the Verde Village Development Agreement. 8. The security required by this Agreement shall represent 1100/0 of the estimated cost of the required improvements and 1100/0 of the estimated cost of the required plant material installation, including restoration and enhancement. To ensure monitoring, maintenance, and survival of the required plant materials, the required security shall not expire and shall remain available to the City for a period of 3 months beyond the Agreement survival deadline (Notwithstanding the above OWNER/DEVELOPER may provide security which expires prior to the time period Verde Village Agreement for Required Improvements and Installation on Plant Materials 8 ----- ------r-- provided, provided new replacement security with a later expiration date is substituted before the expiration date.) The Parties agree that after construction of the required improvements and initial restoration and enhancement and installation of required plant materials, the amount of security may be reduced to cover only the cost of reinstallation of plant materials. 9. The required improvement and required plant materials shall be installed, monitored, maintained and re-installed as necessary in full compliance with the specifications and requirements of City of Ashland, including but not limited to Public Works Construction Standards and Community Development Department standards for plant materials, as well as all approved plans and approval conditions. At the completion of the monitoring period, OWNERlDEVELOPER shall certify 800/0 survival of the plant material and following inspection confirming completion and survival by the City, the security shall be released to OWNER/DEVELOPER. 10. In the event the required improvements and plant materials are not constructed and installed in compliance with this Agreement or the terms and conditions of the approvals referenced or incorporated herein, the City shall have and is hereby granted the right, including a right of entry over and across OWNER/DEVELOPER's lands, to cause the required improvements and plant Verde Village Agreement for Required Improvements and Installation on Plant Materials 9 ---.- - materials to be installed, monitored, maintained or re-installed and to use the security provided herewith for payment of all costs and expenses incurred in the completion thereof, including but not limited to, engineering, consultant, legal and contingent costs. Furthermore, it is agreed by the parties hereto that City shall be reimbursed, from the security provided, for any direct or reasonable consequential damages specifically related to this Agreement, which the City may sustain as a result of the failure of OWNER/DEVELOPER to carry out and execute all of the provisions of this Agreement. City shall have the option to complete the required improvements with City employees and equipment, or pursuant to public advertisement and receipt of bids (or quotes as applicable), in the event of OWNER/DEVELOPER's failure or refusal to do so in accordance with the terms of this Agreement. In the event that the total costs incurred by the CITY in performance of the work shall exceed the amount of security provided, such additional costs shall be paid by OWNER/DEVELOPER on written demand by the City Administrator, or his designee. 11. THE OWNER/DEVELOPER IS RESPONSIBLE FOR NOTIFYING CITY IN WRITING UPON COMPLETION OF THE WORK REQUIRED HEREIN. 12. Prior to execution of City's rights to perform the work and utilize the security provided under this Agreement, the City shall send written notice of the Verde Village Agreement for Required Improvements and Installation on Plant Materials 10 ~----- ---- -, alleged failure to comply with the terms of this Agreement, or of the incorporated approval terms and conditions, to OWNER/DEVELOPER by certified mail, return receipt requested and permit OWNER/DEVELOPER fifteen (15) working days to cure the alleged violation or to appear before the City Council at the next available public meeting following the notice period and show cause why the City should not exercise its rights under this Agreement. OWNER/DEVELOPER designates the following person as its representative to be contacted and to receive all notices regarding this Agreement: Greg Williams 744 Helman Street Ashland, OR 97520 Phone: (541) 261-2712 or (541) 482-5358 IN WITNESS WHEREOF, the parties hereto have executed these presents on the dates indicated below. The date of this Agreement shall be the date on which this Agreement was executed by all parties. OWNER Ashland Flower Shop and Greenhouses, Inc., Dated "\ "2'"\\ 1. O-Qf\ .... \. Verde Village Agreement for Required Improvements and Installation on Plant Materials 11 DEVELOPER Wilma, LLC Dated: \ ,\ -z. ~ \ "200 t) .... , STATE OF OREGON) ) County of Jackson ) The foregoing instrument was acknowledged before me this ~ day of ~ 2008, by Gregory D. Williams, as President and authorized agent of Ashland Flower Shop and Greenhouses, Inc. CD. i .. ~. tt ,1- Notary Public for 0 egon My Commission EXPires:~DIO roved as to Form: ~ ':(>i,'.l':.'~.a:IMt:~;a::~\---=-"""',~",,,~~,~,,~,,~~,,-,~ o Blackhurst, Attorney for OWNER/DEVELOPER . OfFICIAL SEAL DIANA A. SHIPLET NOTARY PUBLIC-OREGON COMMISSION NO. 405584 MY COMMISSION EXPIRES MAY 2, 2010 STATE OF OREGON) ) County of Jackson ) The foregoing instrument was acknowledged before me this ~ay of -1l 0 \f€M.bif- 2008, by Gregory D. Williams, as Managing Member and authorized agent of Wilma, LLC. 17\.. e /) ~_,<, ~J.oJ~ Notary Public for Oregon My Commission Expires:JAa J <i ./).0' 0 . OFFICIAL SEAL DIANA R. SHIPLIT NOTARY PUBLIC-OREGON COMMISSION NO. 405584 MY COMMISSION EXPIRES MAY 2, 2010 Verde Village Agreement for Required Improvements and Installation on Plant Materials 12 ------_..~---.----- CITY OF ASHLAND Dated: //~.y4r , STATE OF OREGON) ) County of Jackson ) , -~ T e fo egoing instrument was acknowledged before me this ~ day of o vem 2008, by Martha Bennett, as Administrator and authorized agent of City of Ashland. @/l 0........ ~._' . Notary Public for o~ My Commission Expires: fI,(~JR,~.OI () APPROVED AS TO FORM '~~ni.:7;~~:~'lliWI&~'~ . OFFICIAL SEAL DIANA R. SHIPLEY NOTARY PUBLIC-OREGON COMMISSION NO, 405584 MY COMMiSSION EXPIRES MAY 2, 2010 Richard cello City Attorney Verde Village Agreement for Required Improvements and Installation on Plant Materials 13 EXHIBIT "A" LEGAL DESCRIPTION Parcel 4 of Partition Plat P-66-208 recorded November 18, 2008 in the Record of Partition Plats in Jackson County, Oregon, and filed as Survey No, 20231 in the Office of the County Surveyor. Verde Village Agreement for Requirement Improvements and Installation on Plant Materials 14 1- PROMISSORY NOTE ~~@~Lewn;1ID ml NOY 2 4 2008 1W BY: ./1::::........... $400,000 Ashland, Oregon November ). ~ 2008 "Payor", the undersigned limited liability company, promises to pay to the order of the City of Ashland, a municipal corporation, as "Payee", at Ashland, Oregon, the sum of Four Hundred Thousand Dollars ($400,000), with no interest thereon, in the event it defaults under that "Agreement For Construction of Required Improvements and Installation and Maintenance of Plant Materials" ("Agreement"), a copy of which is attached hereto and incorporated herein by this reference. Said default shall occur after Payor has received written notice of Payor's failure to comply with the terms of the Agreement and Payor's subsequent failure to cure the non-compliance within the fifteen (15) day cure period. Attorney Fees: If this promissory note is placed in the hands of an attorney for collection, payor promises and agrees to pay the reasonable attorney's fees and collection costs of the holder hereof, and if suit or action is filed hereon, also promise to pay (1) holder's reasonable attorney's fees to be fixed by the trial court, and (2) if any appeal is taken from any decision of the trial court, such further sum as may be fixed by the appellate court, as the holder's reasonable attorney's fees in the appellate court. By: Its: 1--