HomeMy WebLinkAbout2009-076 Agrmt - Rice Park/Verde VLG Construction
CITY OF ASHLAND
AGREEMENT FOR CONSTRUCTION OF REQUIRED IMPROVEMENTS
This Agreement by and between Rogue Valley Community Development
Corporation, an Oregon nonprofit corporation, its successors and assigns,
(hereinafter referred to as the "OWNER"), and the City of Ashland, a municipal
corporation located and being in Jackson County, Oregon, (hereinafter referred to as
the "CITY");
WITNESSETH
WHEREAS, the OWNER is the owner and developer of Rice Park, a 15 unit
affordable housing development inside the boundaries of Verde Village, a Planned
Community within the City of Ashland, Jackson County Oregon;
WHEREAS, on December 20th 2007 the City of Ashland approved an Ordinance
approving the Verde Village Development Agreement, a land use decision, which
controls the development of Verde Village, including the subject property; and
WHEREAS, as part of obtaining any final plat approval for the Rice Park
portion of Verde Village, the developer of Verde Village is required to secure public
infrastructure improvements with a bond or other acceptable security; and
WHEREAS, given the current economic climate, OWNER has requested to
substitute an alternative security instrument for a bond and the City has indicated a
willingness to accept alternative security to facilitate the development in accordance
with the Development Agreement;
NOW THEREFORE, in consideration of the mutual promises contained herein,
OWNER and CITY agree as follows:
1. The above recitations are true and correct and are incorporated herein
by this reference; and
Rice Park Agreement for Required Improvements final 51109
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2. The OWNER has obtained approval of a Final Plan [January 6, 2009]
and construction plan authorization for construction of Rice Park, including the
development shown on the Final Plat, final civil engineering and construction plans
and specifications marked approved on May 1, 2009 and located in the offices of the
City of Ashland Public Works and Community Development Department
(hereinafter "required improvements") said approvals being consistent with Exhibit
F of the Verde Village Development Agreement and all other terms and conditions of
the Development Agreement and associated approvals.
3. The OWNER shall construct or cause to be constructed the required
improvements on the Rice Park property and in the adjacent right-of-way in
accordance with approved plans, this Agreement and the Verde Village Development
Agreement and associated approvals.
4. OWNER, its licensed Contractors and professionals, are expressly
granted permission to enter the City right-of-way and other property necessary to
construct the required improvements at reasonable times and 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
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 OWNER, its Contractors and professionals are not the agents of the
CITY and are solely responsible for construction of the required improvements in
accordance with all applicable federal, state and local regulations.
5. Construction of the required improvements must be physically
commenced no later than six (6) months after the date of Final Development Plan
Approval [Le. commence by July 6, 2009] and shall be completed no later than July
Rice Park Agreement for Required Improvements final 51109
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17, 2011. The OWNER, its representative or consultant shall certify, subject to City
verification by the Ashland Public Works Director and Community Development
Director, that the required improvements have been installed by the time specified.
OWNER shall reimburse the City for the reasonable cost of inspection and
verification of the construction and installation of the required improvements and
plant materials.
6. The OWNER by executing this agreement, hereby warrants and
guarantees the construction of the required improvements until July 17, 2013.
Concurrent with execution of this Agreement, the OWNER is providing the City with
financial security in form of a Promissory Note dated
M/K1 I~ I 7~;
in the amount of two hundred fifty-two thousand, seven hundred and fifty dollars
and sixty-eight cents, [$252,750.68], a true copy of which is set forth as Exhibit "B",
attached hereto and made a part hereof by this reference. (Originals shall be
maintained by the City Recorder).
The security shall represent 110% of the
estimated cost of the required improvements with service and connection fees. The
required security shall not expire and shall remain available to the City for a period
of 3 months beyond the Agreement maintenance deadline [October 17, 2013]. Upon
expiration, the City shall cause the City Recorder to return the original Promissory
Note to the OWNER marked "Satisfied by Holder, City of Ashland, by [name of City
Administrator and date of writing]." (Notwithstanding the above OWNER may
provide security which expires prior to the time period provided, provided new
replacement security with a later expiration date is substituted before the expiration
date.)
7. The required improvement shall be installed, monitored, maintained and
re-installed as necessary in full compliance with the specifications and requirements
Rice Park Agreement for Required Improvements final 51109
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of City of Ashland, including but not limited to Public Works Construction
Standards and Community Development Department as well as all approved plans
and approval conditions. At the completion of the monitoring period, following
inspection confirming completion by the City, the security shall be released to
OWNER.
8. In the event the required improvements 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'S lands, to cause the required
improvements 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 damages, either direct or
consequential, which the City may sustain as a result of the failure of OWNER 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'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 on written demand by the City Administrator, or his designee.
9. THE OWNER IS RESPONSIBLE FOR NOTIFYING CITY IN WRITING
UPON COMPLETION OF THE WORK REQUIRED HEREIN.
10. 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
Rice Park Agreement for Required Improvements final 51109
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alleged failure to comply with the terms of this Agreement, or of the incorporated
approval terms and conditions, to OWNER by certified mail, return receipt requested
and permit OWNER 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.
11. OWNER designates the following person as its representative to be
contacted and to receive all notices regarding this Agreement: John Wheeler or
Andrea Miranda of OWNER at PO Box 1733 or 328 S. Central Ave., Suite 203,
Medford, OR 97501 (Telephone Number 541734-2355).
12. In addition to and not in lieu of any other provision or remedy available
to CITY, OWNER agrees that building permits for vertical construction of the second
phase of the development as contemplated in the approval documents shall not be
issued unless the required improvements are installed, inspected and approved by
the City.
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.
THIS I~ DAY OF
Nltr1
,2009.
OWNER
Rogue Valley Community Development Corporation, an Oregon nonprofit
co oration
r
By: Fyd Pawlowski
Its: President of the Board of Directors
Rice Park Agreement for Required Improvements final 51109
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STATE OF OREGON)
County of Jackson )
The foregoing instrument was acknowledged before me this j:{'!! day of
2009, by j://'){Jd I1+tUIIlu.L5Xt' , as Jt){.I/J!A..Jheele~ and
,
authorized ent of Rogue Valley Community Development Corporation, an Oregon
nonprofit corporation.
. OFFICIAL SEAL
, BilLIE K. BOSWELL
. .y. NOTARYPUBlIC.OREGON
COMMISSION NO. 436471
MY COMMISSION EXPIRES APR. 7.2013
~~
Notary Public for Oregon ,I J rY l
My Commission Expires:~OI3
STATE OF OREGON)
County of Jackson )
The foregoing instrument was acknowledged before me this jJj day of
C-'f!7 /.l-<K" 2009, by John Wheeler, as Director of Acquisitions and Construction
and autHbrized agent of Rogue Valley Community Development Corporation, an
Oregon nonp,rofit co r (tZ /J ()
. OFFICIAL SEAL fY7?7~
. BilLIE K. BOSWELL
, .,/ NOTARY PUBlIC.OREGON Notary Public for Oregon J
COMMISSION NO. 436471 ... IJ / ~ "/3
MY COMMISSION EXPIRES APR. 7.2013 My CommISSIOn ExpIres: f /7 ..,("
Approved as to Form: /
Tad Everhart, Attorney for OWNER
STATE OF OREGON)
County of Jackson )
M...
The foregoing instrument was acknowledged before me this } S day of
Mcur 2009, by Martha Bennett, as Administrator and authorized agent of
City of ~shland. ~ ~
lLI!fi I tU f:: .
. OFFICIAL SEAL Notary Public for regon
N~~~~~B~~ON My Commission Expires: May. [X01O
COMMISSION NO. 4055&4
MY COMMISSION ~PIAES MAY 2, 2010
APPROVED AS TO FORM
Rice Park Agreement for Required Improvements final 51109
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EXHIBIT "An
LEGAL DESCRIPTION
PARCEL 2 OF PARTITION PLAT RECORDED NOVEMBER IS, 2008, AS PARTITION
PLAT NO. P-66-200S OF "RECORD OF PARTITION PLATS" IN JACKSON COUNTY,
OREGON, AND FILED AS SURVEY NO. 20231 IN THE OFFICE OF THE JACKSON
COUNTY SURVEYOR.
Rice Park Agreement for Required Improvements final 51109
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EXHIBIT "B"
SECURITY INSTRUMENT
Rice Park Agreement for Required Improvements final 51109
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NONNEGOTIABLE PROMISSORY NOTE
$252,750.68
May (t., 2009
This Nonnegotiable Promissory Note ("Note") is made by Rogue Valley Community Development
Corporation, an Oregon nonprofit corporation ("Maker") in favor of the City of Ashland, a municipal
corporation located and being in Jackson County, Oregon ("Holder").
1. Payment. Maker promises to pay only to Holder in immediately available funds the principal
amount of $252,750.68 not later than October 17, 2013.
2. Interest Rates.
(a) Unless and until an event of default under this Note occurs, Maker is not required to pay
interest on the unpaid principal amount.
(b) On and after an event of default under this Note, Maker will pay interest on the unpaid
principal amount at the annual rate of nine percent (9%).
(c) Interest will be computed on the basis of a 365-day year.
3. Place of Payments. All payments under this Note will be made to Holder at the office of the City
Recorder for the City of Ashland at 20 East Main Street, Ashland, Oregon 97520 or any other
address that Holder may designate by notice to Maker.
4. Application of Payments. All payments under this Note will apply first to any costs and expenses
due to Holder, then to accrued interest to date of payment, and then to the unpaid principal amount.
5. Prepayments. Maker may prepay a part or all of the unpaid principal amount at any time.
6. No Negotiation. This Note is nonnegotiable and may not be sold, assigned, or otherwise
negotiated to any person without the prior written consent of Maker, which Maker may withhold in
Maker's sole discretion.
7. Related Agreement. The obligations of Maker under this Note are subject to the terms and
conditions of the City of Ashland Agreement for Construction of Required Improvements between
Maker and Holder on or about the date of this Promissory Note.
8. Events of Default. Each of the following is an event of default under this Note:
(a) Maker fails to make any payment required by this Note when due;
(b) the occurrence of any event that has or may reasonably be expected to have a material
adverse effect on Maker's financial condition or Maker's ability to make any payment
required by this Note;
(c) Maker voluntarily dissolves or ceases to exist, or any final and nonappealable order or
judgment is entered against Maker ordering its dissolution;
(d) Maker fails to pay, becomes insolvent or unable to pay, or admits in writing an inability to
pay Maker's debts as they become due, or makes a general assignment for the benefit of
creditors; and
(e) a proceeding with respect to Maker is commenced under any applicable law for the benefit of
creditors, including but not limited to any bankruptcy or insolvency law, or an order for the
appointment of a receiver, liquidator, trustee, custodian, or other officer having similar
powers over Maker is entered.
9. Remedies. On and after an event of default under this Note, Holder may exercise any remedy
available to Holder at law or in equity which are cumulative and which may be exercised singularly
or concurrently.
10. TIme of Essence. Time is of the essence with respect to all dates and time periods in this Note.
11. Amendment. This Note may be amended only by a written document signed by the party against
whom enforcement is sought.
I - NONNEGOTIABLE PROMISSORY NOTE
12. Waiver.
(a) Maker waives demand, presentment for payment, notice of dishonor or nonpayment, protest,
notice of protest, and lack of diligence in collection, and agrees that Holder may extend or
postpone the due date of any payment required by this Note without affecting Maker's
liability.
(b) No waiver will be binding on Holder unless it is in writing and signed by Holder. Holder's
waiver of a breach of a provision of this Note will not be a waiver of any other provision or a
waiver of a subsequent breach of the same provision.
13. Severability. If a provision of this Note is determined to be unenforceable in any respect, the
enforceability of the provision in any other respect and of the remaining provisions of this Note will
not be impaired.
14. Governing Law. This Note is governed by the laws of the State of Oregon, without giving effect
to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this
Note.
15. Venue. Any action or proceeding arising out ofthis Note will be litigated in courts located in
Jackson County, Oregon. Maker consents and submits to the jurisdiction of any local, state, or
federal court located in Jackson County, Oregon.
16. Attorney's Fees. If any arbitration or litigation is instituted to interpret, enforce, or rescind this
Note, including but not limited to any proceeding brought under the United States Bankruptcy
Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in
addition to any other relief awarded, the prevailing party's reasonable attorney's fees and other fees,
costs, and expenses of every kind, including but not limited to the costs and disbursements specified
in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition
for review, the collection of any award, or the enforcement of any order, as determined by the
arbitrator or court.
17. Costs and Expenses. If an event of default under this Note occurs and Holder does not institute
any arbitration or litigation, Maker will pay to Holder, upon Holder's demand, all reasonable costs
and expenses, including but not limited to attorney's fees and collection fees, incurred by Holder in
attempting to collect the indebtedness evidenced by this Note.
Maker:
Rogue Valley Community Development
Corporation, an Oregon nonprofit corporation
,
By: oyd Pawlowski
Its: President of the Board of Directors
2 - NONNEGOTIABLE PROMISSORY NOTE