HomeMy WebLinkAboutA018 - Mortgage dated June 22, 1992 - Ford Street Development to City II 2
IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE
t OFFICIAL FORM NO.128 OF THIS FORM,CONSULT YOUR LAWYER
S'Al,
MORTGAGE
THIS MORTGAGE is made between FORD STREET DEVELOPMENT COMPANY
an Iowa General Partnership ("Mortgagors")and
CITY OF AMES, IOWA, an Iowa Municipal Corporation ("Mortgagee").
1. Grant of Mortgage and Security Interest. Mortgagors hereby sell, convey and mortgage unto Mortgagee,
and grant a security interest to Mortgagee in the following described property:
a. Land and Buildings. All of Mortgagors' right, title and interest in and to the following described real estate
situated in County, Iowa(the"Land"):
12Q 8fi
(see attached description) Qsr.NO.STORY COUNTY, IOWA
' FILED FOR RECORD
At- 1 I ' JUN 24 992 *'
SMN L VM KAAIP Rawror
V• l i Re
AWRWS fee:
and all buildings,structures and improvements now standing or at any time hereafter constructed or placed upon the
Land (the "Buildings"), including all hereditaments, 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 Property. 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").
c. Revenues and Income.All rents, issues,profits,leases,condemnation awards and insurance proceeds now or
hereafter arising from the ownership, occupancy or use of the Land, Buildings and Personal Property, or any part
thereof(the"Revenues and Income").
TO HAVE AND TO HOLD the Land, Buildings, Personal Property and Revenues and Income(collectively called the
"Mortgaged Property"), together with all privileges, hereditaments thereunto now or hereafter belonging, or in any way
appertaining and the products and proceeds thereof,unto Mortgagee, its successors and assigns.
2. Obligations.This Mortgage secures the following(hereinafter collectively referred to as the"Obligations"):
nou Mortgagor's obligations set forth in Development Agreement for The
Ames Community Industrial Park Tax Increment Finance District, filed in
the office of the Recorder of Story County, Iowa, on June 9, 1992, in Book 326,
page 131.
3. Representations and Warranties of Mortgagors. Mortgagors represent, warrant and covenant to Mort-
gagee that(i)Mortgagors hold clear title to the Mortgaged Property and title in fee simple in the Land;(ii)Mortgagors 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 1 a. herein; (iv) Mortgagors 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.
4. Payment and Performance of the Obligations. Mortgagors will pay all amounts payable under the
Obligations in accordance with the terms of the Obligations when and as due and will timely perform all other obligations of
Mortgagors under the Obligations. The provisions of the Obligations are hereby incorporated by reference into this
Mortgage as if fully set forth herein.
5. Taxes.Mortgagors shall pay each installment of all taxes and special assessments of every kind,now or hereafter
levied against the Mortgaged Property before the same become delinquent,without notice or demand,and shall deliver to
Mortgagee proof of such payment within fifteen (15) days after the date in which such tax or assessment becomes
delinquent.
6. Liens.Mortgagors shall not create,incur or suffer to exist any lien,encumbrance,security interest or charge on the
Mortgaged Property or any part thereof which might or could be held to be equal or prior to the lien of this Mortgage,other
than the lien of current real estate taxes and installments of special assessments with respect to which no penalty is yet
payable. Mortgagors shall pay,when due,the claims of all persons supplying labor or materials to or in connection with the
Mortgaged Property.
7. Compliance with Laws. Mortgagors shall comply with all present and future statutes, laws, rules, orders,
regulations and ordinances affecting the Mortgaged Property,any part thereof or the use thereof.
8. Permitted Contests.Mortgagors shall not be required to(i)pay any tax,assessment or other charge referred to
in paragraph 5 hereof, (ii)discharge or remove any lien, encumbrance or charge referred to in paragraph 6 hereof,or(iii)
comply with any statute, law, rule, regulation or ordinance referred to in paragraph 7 hereof, so long as Mortgagors shall
®Iowa State Bar Association 128 MORTGAGE
This Printing December,1989 BWK PAGE
Revised October,1988
-��.�_L,_
contest,in good faith,the existence,amount or the validity thereof,the amount of damages caused thereby or the extent of
Mortgagors' liability therefor, by appropriate proceedings which shall operate during the pendency thereof to prevent(A)
the collection of,or other realization upon the tax,assessment,charge or lien,encumbrances or charge so contested, (B)
the sale, forfeiture or loss of the Mortgaged Property or any part thereof, and (C) any interference with the use of
occupancy of the Mortgaged Property or any part thereof.Mortgagors shall give prompt written notice to Mortgagee of the
commencement of any contest referred to in this paragraph 8.
9. Care of Property. Mortgagors shall take good care of the Mortgaged Property; shall keep the Buildings and
Personal Property now or later placed upon the Mortgaged Property in good and reasonable repair and shall not injure,
destroy or remove either the Buildings or the Personal Property during the term of this Mortgage. Mortgagors shall not
make any material alteration to the Mortgaged Property without the prior written consent of Mortgagee.
10. Insurance.
a. Risks to be Insured.Mortgagors,at their sole cost and expense,shall maintain insurance on the Buildings and
other improvements now existing or hereafter erected on the Land and on the Personal Property included in the
Mortgaged Property against loss by fire,extended coverage perils and such other hazards as Mortgagee may from
time to time require,such insurance to have a"Replacement Cost"endorsement attached thereto,with the amount of
the insurance at least equal to the balance of the Obligations. At Mortgagors' option, such policy may have a
coinsurance clause of not less than 90%of replacement cost provided the policy contains an appropriate form of cost
escalation endorsement. Mortgagors will at their sole cost and expense, from time to time, and at any time at the
request of Mortgagee, provide Mortgagee with evidence satisfactory to Mortgagee of the replacement cost of
Mortgaged Property. Mortgagors will maintain such other insurance as Mortgagee may reasonably require.
b. Policy Provisions. All insurance policies and renewals thereof maintained by Mortgagors pursuant to this
Mortgage shall be written by an insurance carrier satisfactory to Mortgagee,contain a mortgagee clause in favor of
and in form acceptable to Mortgagee,contain an agreement of the insurer that it will not amend,modify or cancel the
policy except after thirty(30)days prior written notice to Mortgagee,and be reasonably satisfactory to Mortgagee in
all other respects.
c. Delivery of Policy or Certificate. If requested by Mortgagee, Mortgagors will deliver to Mortgagee original
policies satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage,and Mortgagors
shall promptly furnish to Mortgagee all renewal notices and,upon request of Mortgagee,evidence of payment thereof.
At least ten(10)days prior to the expiration date of a required policy,Mortgagors shall deliver to Mortgagee a renewal
policy in form satisfactory to Mortgagee.
d. Assignment of Policy. If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shall acquire title
to the Mortgaged Property, Mortgagee shall have all of the right, title and interest of Mortgagors in and to any
insurance policies required hereunder, and the unearned premiums thereon, and in and to the proceeds thereof
resulting from any damage to the Mortgaged Property prior to such sale or acquisition.
e. Notice of Damage or Destruction; Adjusting Loss. If the Mortgaged Property or any part thereof shall be
damaged or destroyed by fire or other casualty, Mortgagors will,within five(5)calendar days after the occurrence of
such damage or destruction,give written notice thereof to the insurance carrier and to Mortgagee and will not adjust
any damage or loss which is estimated by Mortgagors in good faith to exceed$25,000 unless Mortgagee shall have
joined in or concurred with such adjustment;but if there has been no adjustment of any such damage or loss within
four(4) months from the date of occurrence thereof and if an Event of Default shall exist at the end of such four(4)
month period or at any time thereafter, Mortgagee may alone make proof of loss,adjust and compromise any claim
under the policies, and appear in and prosecute any action arising from such policies. In connection therewith,
Mortgagors do hereby irrevocably authorize, empower and appoint Mortgagee as attorney-in-fact for Mortgagor
(which appointment is coupled with an interest) to do any and all of the foregoing in the name and on behalf
of Mortgagors.
f. Application of Insurance Proceeds.All sums paid under any insurance policy required by this Mortgage shall
be paid to Mortgagee,which shall,at its option,apply the same(after first deducting therefrom Mortgagee's expenses
incurred in collecting the same including but not limited to reasonable attorneys' fees) to the reduction of the
Obligations or to the payment of the restoration, repair, replacement or rebuilding of Mortgaged Property that is
damaged or destroyed in such manner as Mortgagee shall determine and secondly to the reduction of the
Obligations.Any application of insurance proceeds to principal of the Obligations shall not extend or postpone the due
date of the installments payable under the Obligations or change the amount of such installments.
g. Reimbursement of Mortgagee's Expenses. Mortgagors shall promptly reimburse Mortgagee upon demand
for all of Mortgagee's expenses incurred in connection with the collection of the insurance proceeds,including but not
limited to reasonable attorneys'fees,and all such expenses shall be additional amounts secured by this Mortgage.
11. Inspection.Mortgagee,and its agents,shall have the right at all reasonable times,to enter upon the Mortgaged
Property for the purpose of inspecting the Mortgaged Property or any part thereof. Mortgagee shall, however, have no
duty to make such inspection.Any inspection of the Mortgaged Property by Mortgagee shall be entirely for its benefit and
Mortgagors shall in no way rely or claim reliance thereon.
12. Protection of Mortgagee's Security. Subject to the rights of Mortgagors under paragraph 8 hereof, if
Mortgagors 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 Mortgagee therein, or the title thereto, then
Mortgagee, at Mortgagee's option, may perform such covenants and agreements, defend against or investigate such
action or proceeding, and take such other action as Mortgagee deems necessary to protect Mortgagee's interest. Any
amounts or expenses disbursed or incurred by Mortgagee in good faith pursuant to thi¶graph 12 with interest thereon
at the rate of %per annum, shall become an Obligation of Mortgagors secured by this Mortgage. Such amounts
advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by Mortgagors unless Mortgagors
and Mortgagee agree in writing to other terms of repayment.Mortgagee 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 Mortgagee 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 Mortgagee to incur any expense or do any act hereunder, and Mortgagee shall not be liable to
Mortgagors for any damage or claims arising out of action taken by Mortgagee pursuant to this paragraph.
13. Condemnation. Mortgagors shall give Mortgagee prompt notice of any action, actual or threatened, in
condemnation or eminent domain and hereby assign,transfer and set over to Mortgagee the entire proceeds of any award
or claim for damages for all or any part of the Mortgaged Property taken or damaged under the power of eminent domain
or condemnation. Mortgagee is hereby authorized to intervene in any such action in the names of Mortgagors, to
compromise and settle any such action or claim, and to collect and receive from the condemning authorities and give
proper receipts and acquittances for such proceeds.Any expenses incurred by Mortgagee in intervening in such action or
compromising and settling such action J�r claim,or collecting such proceeds shall be reimbursed to Mortgagee first out of
the,proceeds. The remaining proceeds or any part thereof shall be applied to reduction of that portion of the Obligations
then most remotely to be paid, where dde or,not, or to the restoration or repair of the Mortgaged Property,PropeLty,the choice of
application to be solely at the discretion of Mortgagee. BOOK PAGE
V
14. Fixture Filing. From the date of its recording,this Mortgage shall be effective as a financing statement filed as a
fixture filing with respect to the Personal Property and for this purpose the name and address of the debtor is the name and
address of Mortgagors as set forth in paragraph 20 herein and the name and address of the secured party is the name and
address of the Mortgagee as set forth in paragraph 20 herein.
15. Events of Default. Each of the following occurrences shall constitute an event of default hereunder("Event
of Default"):
a. Mortgagors shall default in the due observance or performance of or breach its agreement contained in
paragraph 4 hereof or shall default in that 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. Mortgagors shall make an assignment for the benefit of its creditors,or a petition shall be filed by or against
Mortgagors under the United States Bankruptcy Code or Mortgagors 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.
e.
16. Accleration; Foreclosure. Upon the occurrence of any Event of Default and at any time thereafter while
such Event of Default exists, Mortgagee may, at its option,exercise one or more of the following rights and remedies
(and any other rights and remedies available to it):
a. Mortgagee 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 of demand.
b. Mortgagee 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 Mortgagors of
intended disposition of such property is required by law in a particular instance, such notice shall be deemed
commercially reasonable if given to Mortgagors at least ten(10)days prior to the date of intended disposition.
c. Mortgagee may (and is hereby authorized and empowered to)foreclose this Mortgage in accordance with
the law of the State of Iowa, 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 Mortgagee appoint a receiver
to take immediate 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 Mortgagors 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.
17. Redemption. It is agreed that if this Mortgage covers less than ten(10)acres of land,and in the event of the
foreclosure of this Mortgage and sale of the property by sheriff's sale in such foreclosure proceedings,the time of one
year for redemption from said sale provided by the statutes of the State of Iowa shall be reduced to six (6) months
provided the Mortgagee, in such action files an election to waive any deficiency judgment against Mortgagors which
may arise out of the foreclosure proceedings;all to be consistent with the provisions of Chapter 628 of the Iowa Code.
If the redemption period is so reduced, for the first three (3) months after sale such right of redemption shalTbe
exclusive to the Mortgagor, and the time periods in Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be
reduced to four (4) months.
It is further agreed that the period of redemption after a foreclosure of this Mortgage shall be reduced to sixty(60)
days if all of the three following contingencies develop: (1) The real estate is less than ten (10) acres in size; (2)the
Court finds affirmatively that the said real estate has been abandoned by the owners and those persons personally
liable under this Mortgage at the time of such foreclosure;and(3)Mortgagee in such action files an election to waive
any deficiency judgment against Mortgagors or their successor in interest in such action.If the redemption period is so
reduced, Mortgagors or their successors in interest or the owner shall have the exclusive right to redeem for the first
thirty (30) days after such sale, and the time provided for redemption by creditors as provided in Sections 628.5,
628.15 and 628.16 of the Iowa Code shall be reduced to forty(40)days. Entry of appearance by pleading or docket
entry by or on behalf of Mortgagors shall be presumption that the property is not abandoned. Any such redemption
period shall be consistent with all of the provisions of Chapter 628 of the Iowa Code. This paragraph shall not be
construed to limit or otherwise affect any other redemption provisions contained in Chapter 628 of the Iowa Code.
18. Attorneys' Fees. Mortgagors shall pay on demand all costs and expenses incurred by Mortgagee in
enforcing or protecting its rights and remedies hereunder,including,but not limited to, reasonable attorneys'fees and
legal expenses.
19. Forbearance not a Waiver, Rights and Remedies Cumulative. No delay by Mortgagee 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 Mortgagee of any particular provisions of this Mortgage shall be
deemed effective unless in writing signed by Mortgagee. All such rights and remedies provided for herein or which
Mortgagee 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 therefor arises.
20. Notices. All notices required to be given hereunder shall be in writing and deemed given when personally
delivered or deposited in the United states mail, postage prepaid,sent certified or registered,addressed as follows:
a. If to Mortgagors,to:
Ford Street Development Canpany
P.O. Box 1652
Ames, Iowa 50010
b. If to Mortgagee,to:
City Manager, City of Ames
Ames City Hall, 515 Clark Avenue
Ames, Iowa 50010
BOOK PAGE 73
..
or to such other address or person as hereafter designated in writing by the applicable party in the manner provided in
this paragraph for the giving of notices.
21. Severability. In the event any portion of this Mortgage shall, for any reason, be held to be invalid, illegal or
unenforceable in whole or in part,the remaining provisions shall not be affected thereby and shall continue to be valid
and enforceable and if, for any reason, a court finds that any provision of this Mortgage is invalid, illegal, or
unenforceable as written, but that by limiting such provision it would become valid, legal and enforceable then such
provision shall be deemed to be written,construed and enforced as so limited.
22. Further Assurances.At any time and from time to time until payment in full of the Obligations, Mortgagors
will, at the request of Mortgagee, promptly execute and deliver to Mortgagee such additional instruments as may be
reasonably required to further evidence the lien of this Mortgage and to further protect the security interest of
Mortgagee with respect to the Mortgaged Property, including, but not limited to, additional security agreements,
financing statements and continuation statements. Any expenses incurred by Mortgagee in connection with the
recordation of any such instruments shall become additional Obligations of Mortgagors secured by this Mortgage.
Such amounts shall be immediately due and payable by Mortgagors to Mortgagee.
23. Successors and Assigns bound; Number; Gender; Agents; Captions. The rights, covenants and
agreements contained herein shall be binding upon and inure to the benefit of the respective legal representatives,
successors and assigns of the parties. Words and phrases contained herein, including acknowledgement hereof,
shall be construed as in the singular or plural number,and as masculine,feminine or neuter gender accoridng to the
contexts. The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be
used to interpret or define the provisions hereof.
24. Governing Law.This Mortgage shall be governed by and construed in accordance with the laws of the State
of Iowa.
25. 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.
26. Acknowledgement of Receipt of Copies of Debt Instrument. Mortgagors hereby acknowledge the
receipt of a copy of this Mortgage
27. Additional Provisions.
FORD SPREE DEVELAPME3NP MANY,
an Iowa General Partnership
By: Dayton Road Development Ccmpany
(a Partner y
C
By
Marv' J. Wal ,
Pres' t
By
J,plm M. Botos,
Secretary
Dated: June Z, Z. 19 92 and
By: JPR Partnership, Ltd.
s
Ird T. Jo ,Mortgagors
Partner
STATE OF IOWA )
ss.
COUNTY OF STORY )
On this day of //.zkprri-; 1992, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared Marvin J. Walter and John M. Botos, to me
personally known, who, being by me duly sworn, did state that they -
are the President and Secretary, respectively, of Dayton Road
Development Company, an Iowa corporation which is a Partner of Ford
Street Development Company, an Iowa General Partnership, executing
the foregoing instrument; that no seal has been procured by the
corporation; that the instrument was signed on behalf of the
corporation as a Partner of Ford Street Development Company, an
Iowa General Partnership, by authority of the corporation's Board
of Directors; and that Marvin J. Walter and John M. Botos, as
officers of the corporation, acknowledged the execution of the
instrument to be the voluntary act and deed of the corporation and
of the partnership, by it and by the officers voluntarily executed.
Further, on this same date, before me, the undersigned, personally ,
appeared Richard T. Johnson, to me personally known, who, being by,,., r
me duly sworn, did say that he is one of the partners of JPR
Partnership, Ltd. , an Iowa General Partnership, and .a Partner of',
Ford Street Development Company, and that the instrument was signed
on behalf of JPR Partnership, Ltd. , as a Partner of Ford Street
Development Company, by authority of the Partners, and the Partner
acknowledged the execution of the instrument to be the voluntary
act and deed of Ford Street Development Company and of JPR .
Partnership, Ltd. , by the partnerships and by the Partner
voluntarily executed.
Notary Public iVaAd for the �/
i �Pa�� State of Iowa Sandra /l• 7-Ie99eA-
1
r `
ATTACHMENT TO MORTGAGE
Ford Street Development Company (Mortgagor) and
City of Ames, Iowa (Mortgagee)
DESCRIPTION
Lot Two (2) , Third Addition of W.G.G.C. Subdivision,
Ames, Iowa, EXCEPT that part of said Lot Two (2)
described as follows: Beginning at the Southwest Corner
(SW Cor. ) of Lot One (1) , Second Addition of W.G.G.C.
Subdivision, Ames, Iowa, thence South 1034 ' 13" West
242 . 56 Feet, thence North 89032148" East 274 . 53 Feet,
thence North 04019128" East 243 . 29 Feet, thence South
89032125" West 286. 24 Feet to the point of beginning
(this exception will subsequently be described as Lot One
(1) , Ames Community Industrial Park, Ames, Iowa) , AND
EXCEPT Beginning at the Southwest Corner (SW Cor. ) of Lot
One (1) , Second Addition of W.G.G.C. Subdivision, Ames,
Iowa, thence South 01034113" West 242 . 56 Feet to the
point of beginning, thence continuing South 01023113"
West 192 . 18 Feet to a point of curvature of a 110 Foot
radius curve concave Northeasterly, thence 176. 67 Feet
along said curve, the chord of which is 158 . 29 Feet with
a chord bearing of South 44c)26130" East to a point of
tangency, thence North 89032148" East 207 .85 Feet, thence
North 0027112" West 305. 94 Feet, thence South 89032148"
West 311. 00 Feet to the point of beginning (this
exception will be subsequently described as Lot Two (2) ,
Ames Community Industrial Park, Ames, Iowa) ;
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