HomeMy WebLinkAboutA035 - Letter dated March 12, 2001 regarding Covenant for Assessment of Costs of Improvements Dayton Avenue - From Attorneys t
NyEmAsTER, GOODE, VOIGTS, WEST, MAR 1 2 non
HANSELL & O'BRIEN
A PROFESSIONAL CORPORATION L F.'; !-I
ATTORNEYS AND COUNSELORS AT LAW -',k;-A
L.R.VOIG-15 JAMES E.GRITZNER. WILLARD L.BOYD III AMY L.BENTLER 700 WALNUT,SUITE 1600
JAMB B.
WEST MICHAM COURIERW.THRALL JEFFREY W.COURIER NEAL K.WESTIN DES Moms,IOWA 50309-3899
EDGAR F.HANSELL MARK C.DICKINSON HALLIE E.STILL-CARIS STEPHANIE L.MARETT
R.CRAIG SHTVES GREGORY B.WILCOX L.W."BILL"ROSEBROOK JODI L.AHLMAN (515)283-3100
DON MUYSKENS JOHN F.LORENTZEN TERRY L.MONSON CORY R.HARRIS
LAWRENCE E.MYERS ROD MAT BARRY J.NADLER 1416 BUCKEYE AVENUE,SLATE 200
KEITH E.LUCHTEL STEVEN J.ROY DAVID W.BENSON
GERALD J.NEWBROUGH FRANK B.HARTY BRIAN J.HUMKE OF COUNSEL AMES,IOWA 50010-8070
ROBERT A.VANORSDEL JAMES C.WINE DEBORAH S.KRALTITI SAMUEL G.O'BRIEN
RICHARD J.SAPP BRUCE W.BAKER PAULA S.DIERENFELD JOHN J.MCLAUGHLIN (515)233-3000
G.R.NEUMANN THOMAS W.FOLEY COREEN K.SWEENEY DREW F-TILLOTSON WRITER'S DIRECT DIAL NUMBER
RUSSELL E.SCHRAGE STEVEN H.LYTLE JOHN B.TUFFNELL FRANK B.COMFORT
CARLTON T.KING TERRY C.HANCOCK )ILL M.STEVENSON W.DON BRn-nN,JR. (515)283-3197
GREGORY P.PAGE ANTHONY A.LONGNECKER ANGEL A.WEST ROGER L.FERRIS E-MAIL:RPK@NYEMASTER.com
RANDALL G.HORSTMANN JOSEPH A.QUINN KATHRYN A.OVERBERG LUTHER L.HILL,JR.
JAY EATON WADE H.SCHUT ANGELA L.WATSON
BURNS MOSSMAN MARK D.ALJETS KERI K.FARRELL-KOLB FACSIMILE
BRADFORD L.AUSTIN G.THOMAS SULLIVAN MARY E.FUNK (515)283-3108
SARA J.SERSLAND JOAN FLETCHER DEBRA L.HULETT RAY NYEMASTER
HAYWARD L.DRAPER THOMAS H.WALTON JOHN T.CLENDENIN (1914-1995) REPLY TO:
DES MOINES
March 12, 2001
Mr. John Klaus
City Attorney
City of Ames
515 Clark
Ames, IA 50010
RE: Eastgate Development, Inc. Bankruptcy- Eastgate Subdivision Covenant for Assessment
of Costs of Improvements Dayton Avenue
Dear John:
You have previously received from me by facsimile a copy of a letter to all counsel confirming
that all parties have agreed to substitution of a new page 2 to the Covenant for Assessment
Agreement. Enclosed is an original of the new page 2. It is my understanding that you will
substitute this new page in the existing recorded Covenant for Assessment Agreement, mark the
existing Agreement as a "Corrected" Agreement and then forward it to the Story County
Recorder for filing. If my understanding is incorrect in any respect, please advise me
immediately.
We intend to close the Clinic Investments sale on March 21. Therefore, I would appreciate it if
you could immediately forward the corrected Agreement to the Recorder for recording and
obtain the filing information as soon as possible. When you receive the filing information,
please send it to me since it must be inserted in one of the title clearing documents.
March 12, 2001
Page 2
Please forward to our office the costs of any filing fee, and we will reimburse the City of Ames
for that fee.
Thank you for your cooperation. If you have any questions, please feel free to contact me.
Very truly yours,
It 111Y//?�
Rod Kubat
Enclosure
03/12/01 09:24 FAX 515 283 3108 JNYhRAJ'1'h1< LAW t'11<31 Ly UU4/UVa
NXLmASTER, GOODE,VOIGTS, WEST,
HANSELL & GBRIEN
A PROFEWONAL CORPORATION
ATTORNEYS AND COUNSELORS AT L.A,w
L.R.VOK75 TAMES R,G[llrZNER wluaRD L BOYD M AI Y L.BENT-ES 700 WALNur,SUrr6 1600
JANM B.WIM NSCHAEL W.THRALL IEB'PRBY W.COURTER NEAJ.IL WESTIN DFs MOINBS,IowA 50309-3899
EDGAR F.HANSBLL MARK C DICIONSON HALLIB E.SnLL-ARIB STEIMANIE L.MARETT
R.CWC Stain GREY B.WILCOX LW."BILL"ROMROCIK JODI L.AMLXAN (515)283-3100
DON MUYSKENS JOHN F.LORYNMIN TIIRRY L.MONSON GORY R.ILARM
LAWRENCE F..-MvERS ROD KUBAT HARRY).NADLPR
KET13 E.LUCIITEL 5TEVEN J.RAY DAVID W.BE 45ON 1416 BUCKEYE AVENL S,SurrE 200
GE RALD J-NEWIMOUGH FRANK B.HAM ARTAN J.HUMkE OF COUNSEL AMU,1C W A 50010-8070
ROAERT n VANOBSDE. JANIBB C.WINE DEBORAH S.I ADTH &vdUHL G.dBRmTJ
RICHARD J.SAFP UKUC9 W.BAKER PAUI.A 5.PrERA PFlD JOHN).MCLAU LI GHN (515)233-3000
G.R.NL'UMANN THOMAS W.FOL" CORJMN Y-SWEENEY DRRW R.TILLOTSON
RUSSELL E.SCHILAGE EvEN H.LY1LE JOHN B.TUFFNF.I.1. �K$-COMFOgT WRITER'S DIRECT DIAL NUMBER
ST
CARLTON T.KING TERRY C.HANCOCK JILL M.SrEV$NSON W.DON BRITTIN,M. (515)283-3197
L,RPCORY P.PAGE ANTHONY A.LONCNECK9R ANGEL A.WM ROGER L.FERRIS
RANDALL G.RC91SIMANN JCSE211 A.QUINN KATHRTN A.OVERBERC LUTHER L.M f E-MAIL:RPK@NYEMAgTER.COM
JAY BATON WADS H.SCHUT ANGM A L WATSON
BURNSMOSR-M MARK u.ALJRTS KIMK.FAKRML--KOLB FACSIMILE
BFADFDRD L.AUSTIN G.THOMAS SULLIVAN MARY E.FUNK 515 283.3108
SARA T.SERSLAND JOA T'�N FL>+ Q DEBRA L,RMETr RAT NYEMA5rER )
HAYWARD L.DRAPER THOMAS H,WALTON JOHN T.CLENL 99N (191�1995)
REPLY TO:
DES MoINES
March 12,2001
VIA FACSIMILE ONLY
Mr. John Klaus
Mr. Thorinas Fly1m, Trustee - City Attorney
Belin Law Firm City of Ames
666 Wabiut, Suite 2000 515 Clark
Des Moines, IA 50309 Ames, IA 50010
Mr. John Veldcy Mr. Robert Goodwin
Cartwright, Druker&Ryden Goodwin Law Offices
112 W. Church Street 311 Lincoln Way, Suite One
P.O. Box 496 Ames, 1A 50010-3317
Marshalltown, IA 50158
Mr. Don Neiman
Mr. Michael A. Smith Bradshaw Law Firm
1305 12th Street 801 Grand, Suite 3700
Eldora, IA 50627 Des Moines, TA 50309
RE: Eastgate Development Bankruptcy—Eastgate Subdivision Covenant for AsseSSJ-neut of
Costs of Ianproveuxents Dayton Avenue
03/12/01 09:25 FAX 515 283 3108 NYEMASTER LAW 1"IRAI Lyjuua/UUO
March 12, 2001
Page 2
Gentlemen:
This letter is to confirm your consent on behalf of your respective clients or your own behalf, in
the case of Mr. Flynn, to substituting a new page 2, a copy of which is enclosed, for the existing
page 2 in the Covenant for Assessment Agreement dated February 13, 2001 that has been
executed by all parties and recorded with the Story County Recorder's Office. As I indicated to
you, w17en we prepared the original Covenant for Assessment Agreement to be signed, we
included by inadvertent oversight earlier provisions in paragraph 2.E and paragraph 3 that had
been changed and agreed to by all parties. The Covenant for Assessment Agreement approved
by the Bankruptcy Court approved the provisions ofparagraph 2.E and paragraph 3 as set forth
on the page enclosed herewith. I have marked on the enclosed copy the changes made.
I have forwarded an original new page 2 to Mr. Klaus to substitute for the existing page 2. Each
of you have agreed that Mr. Xlaus caai substitute the new original page 2,mask the Covenant for
Assessment Agreement as a "Corrected" Covenant for AssessmQTit Agreement and refile the
Agreement with the Story County Recorder. If my understanding is incorrect in any respect,
please advise Mr. Klaus and me,immediately.
Ver trul yours,
7
Rod Kubat
RK/kb
Enclosure
03/12/01 08:25 FAX 515 283 3108 NYEMASTEM LAW YIRM Lg UU4/UU5
E. Agree that the amount and proportion of the costs of the construction or repair of the
above-described improvement, including engineering, inspection, and financing costs, to be paid by the
property owners, as ascertained and determined by the Council of the City, upon the completion and
acceptance of the work, spread over a period of not less than twelve f12)-years then determined by the
said City Council, at lawful and usual interest, shall constitute assessments against the aforesaid
properties and that said assessments shall be paid by the undersigned Developer, its successors and
assigns, including purchasers of lots, within the time provided by law for the payment of special
assessments for such improvement.
>;_ Waive the limitation provided in Section 384.62, Code of Iowa, that an assessment
may not exceed twenty-five (25) percent of the value of his/her lot as defined in Section 384.37(5), Code
of Iowa-
G. Waive notice to property owners by publication and mailing as provided by Section
384.60, Code of Iowa (relating to notice of certification of County Auditor of final schedule of
assessments).
H. The Developer warrants that the aforesaid real estate is free and clear of all liens and
encumbrances, except for stick Iens as are held by the mortgagees and lienholders hereinafter listed and
designated as signatories of this Agreement.
I. The Developer agrees to subordinate any sale or mortgaging subsequent to the date
hereof of any part of the properly listed below to the terms of this Agreement.
J. Agree that if the project of this Agreement, or the assessment, is declared in whole or
in part invalid or beyond the City's authority, that Developer, its successors and assigns, including
purchasers of lots, shall nevertheless pay the assessed amounts.
K. Lienholders and mortgagees who become such subsequent to the date hereof, shall be
junior and inferior to the lien of any assessments levied pursuant to this covenant and agreement, but
current lienholders and mortgagees, agree that if by foreclosure of their lien or mortgage they acquire title
to any lot assessed as aforesaid, they shall be bound to pay said assessment; and, that this agreement shall
remain in full'force and effect after such foreclosure of lien or mortgage.
L_ Waive the right to request deferment for agricultural land.
The foregoing provisions encumber the land that is platted as Eastgate Subdivision, Ames,Iowa.
3. The Developer, its successors, and assigns, including purchasers of lots, may at any time
procure a release from the street assessment obligations of this covenant and agreement with respect to
any lot or lots in the said Eastgate Subdivision by paying to the City that amount that is the percentage
shown on Exhibit A with respect to said lot or lots to be released, of the cost then estimated by the City
for the said improvements to the said Dayton Avenue. The City agrees that for a period beginning with
the effective date of this Agreement and ending on May 1, 2001, the amount of such cost shall be
$141,000.00.
4_ This covenant and agreement shall be filed for record in the office of the Story County
Recorder and all covenants, agreements promises and representations herein stated shall be deemed to be
covenants running with the land and shall endure and be binding on the parties hereto, their mortgagees,
lienholders, successors and assigns, for a period of twenty-one (21) years from the date of the recording
of these covenants, unless claims to continue any interest in the covenants are tiled as provided by law.
The City shall have the right to file a claim to continue its interest in these covenants.
2
03/12/01 09:25 FAX 515 283 3108 NYEMASTER LAN' FIRM 1VJ uu5iuu5
E. Agee that the amount and proportion of the costs of the construction or repair of the
above-described improvement, including engineering, inspection, and financing costs, to be paid by the
property owners, as ascertained and determined by the Council of the City, upon the completion and
acceptance of the work, spread over a period of not less than twelve (12) years then determined by the
said City Council, at lawful and usual interest, shall constitute assessments against the aforesaid
properties and that said assessments shall be paid by the undersigned Developer, its successors and
assigns, including purchasers of lots, within the time provided by law for the payment of special
assessments for such improvement.
F. Waive the limitation provided in Section 384.62, Code of Iowa, that an assessment
may not exceed twenty-Five (25) percent of the value of his/her lot as defined in Section 384.37(5), Code
of Iowa.
G. Waive notice to property owners by publication and mailing as provided by Section
384.60, Code of Iowa (relating to notice of certification of County Auditor of final schedule of
assessments).
H. The Developer warrants that the aforesaid real estate is free and clear of all liens and
encumbrances, except for such liens as are held by the mortgagees and lienholders hereinafter listed and
designated as signatories of this Agreement.
I_ The Developer agrees to subordinate any sale or mortgaging subsequent to the date
hereof of any part of the property listed below to the terms of this Agreement.
T Agree that if the project of this Agreement, or the assessment, is declared in whole or
in part invalid or beyond the City's authority, that Developer, its successors and assigns, including
purchasers of lots, shall nevertheless pay the assessed amounts.
K. Lienholders and mortgagees who become such subsequent to the date hereof, shall be
junior and inferior to the lien of any assessments levied pursuant to this covenant and agreement, but
current lienholders Find mortgagees, agree that if by foreclosure of their lien or mortgage they acquire title
to any lot assessed as aforesaid,they shall be bound to pay said assessment; and,that this agreement shall
remain in Hill force and effect after such foreclosure of lien or mortgage.
L. Waive the right to request deferment for agricultural land.
The foregoing provisions encumber the land that is platted as Eastgate Subdivision, Ames,Iowa.
3. The Developer, its successors, and assigns, including purchasers of lots, may at any time
procure a release from the street assessment obligations of this covenant and agreement with respect to
any lot or lots in the said Eastgate Subdivision by paying to the City that amount that is the percentage
shown on Exhibit A with respect to said lot or lots to be released, of the cost then estimated by the City
for the said improvements to the said Dayton Avenue. The City agrees that for a period beginning with
the effective date of this Agreement and ending on May 1, 2001, the amount of such cost shall be
$141,000.00.
4. This covenant and agreement shall be filed for rceord in the office of the SEory County
Recorder and all covenants, agreements promises and representations herein stated shall be deemed to be
covenants running with the land axed shall endure and be binding on the parties hereto, their mortgagees,
lienholders, successors and assigns, for a period of twenty-one (21)years from the date of the recording
of these covenants, unless claims to continue any interest in the covenants are filed as provided by law.
The City shall have the right to file a claim to continue its interest in these covenants.
2