Res 1075 - Auth Exctn Agmt LID
COUNCIL BILL NO. 1331
RESOLUTION NO. 1075
A RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT IN LIEU OF AN
Ll.D. FOR THE CONSTRUCTION OF CERTAIN SEWERAGE IMPROVEMENTS.
WHEREAS, the involved private parties contemplate development within the
incorporated limits of Woodburn, Marion County, Oregon; and
WHEREAS, the City has obtained a Special Public Works Fund Award Contract,
No. L91013 from the State of Oregon for the construction of certain sewerage
improvements and the actual construction bid exceeds the original estimates; and
WHEREAS, the State of Oregon has agreed to make additional funds available
to complete said sewerage project; and
WHEREAS, the involved property owners will be benefitted by such sewerage
improvement and it is appropriate that they pay a fair share of the expense in proportion
to their respective acreages; and
WHEREAS, all parties agree that there is an efficient and equitable method of
constructing and paying for said sewerage improvements; and
WHEREAS, the completion of this infrastructure development will provide needed
sewer linkages in the freeway interchange area to benefit the citizens of the City as a
whole, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
SECTION 1. The Mayor is authorized to sign the Agreement in Lieu of an Ll.D.
on behalf of the City of Woodburn, a copy of whi is attached hereto and incorporated
herein. ':)/ ?{ _ 2 2 -1 I
Approved as to form; ~
City Attorney
APPROVED:
Date
~e2u)~
FRED W. KYSER, MAY
August 26, 1991
Passed by the Council
Submitted to the Mayor
August 27, 1991
August 27, 1991
August 27, 1991
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST: 11~~~
Mary len t, Deputy Recorder
City of Woodburn, Oregon
Page 1 -
COUNCIL BILL NO. 1331
RESOLUTION NO. 1075
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DEVEWPMENT AGREEMENT
THIS AGREEMENT is made by and between the CITY OF WOODBURN, an Oregon
municipal corporation (hereinafter "CITY"); PIONEER TRUST BANK, N.A., TRUSTEE FOR
IOHN N. HOOPER (hereinafter "PIONEER"); KLAW HOLDINGS, an Oregon partnership
consisting of Keith L. Hershberger and A. Ward Hershberger; GEORGE F. BRICE, III;
PRAIRIE CORPORATION, an Oregon corporation; JACK FOX; and DAVIDSON FARMS,
INC., an Oregon corporation.
RECITALS
WHEREAS, the above-named private parties contemplate development within the
incorporated limits of Woodburn, Marion County, Oregon; and
WHEREAS, Brice and Fox each have a portion of the property of Pioneer Trust Bank
under option; and
WHEREAS, the City of Woodburn obtained a Special Public Works Fund Award
Contract, number L91013 from the State of Oregon for the construction of certain sewerage
improvements, and the actual construction bid exceeds the estimates by $290,919.00 mall as
described in Exhibit A attached hereto; and
WHEREAS, the State of Oregon has agreed to make a grant in the amount of $33,345.00
to the CITY, which leaves a nonfunded cost of $257,574.00 to complete such sewerage project;
and
WHEREAS, the State of Oregon has agreed to loan such unfunded cost to the City of
Woodburn at an interest rate estimated at 6 1/2 % per annum (to be determined by State bond
sale), to be repaid over a period of twenty (20) years; and
WHEREAS, the above named property owners will be benefitted by such sewerage
improvement in direct proportion to the acreages of their properties as set forth on Exhibit B
attached hereto (estimated acreage); and
WHEREAS, time is of the essence with respect to such construction and the contract for
construction must be awarded immediately to take advantage of the current building season and
the property owners consider an emergency to exist, and the property owners have, therefore,
requested the CITY to impose a charge in lieu of a local improvement district assessment upon
such properties since there is insufficient time, under the circumstances, to form a local
improvement district; and
WHEREAS, all of the parties desire to agree upon an efficient and equitable method of
constructing improvements.
NOW, THEREFORE, the parties agree as follows:
Section 1. CONSTRUCTION OF IMPROVEMENTS. The CITY agrees to construct
certain sewerage improvements known as the West Woodburn Sewerage Project and described
in the Special Public Works Award Contract, number L91013, and more specifically described
in the plans and specifications for such project which are on file with the Public Works
Department of the City of Woodburn. The CITY agrees to immediately award the contract to
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the lowest bidder, and to cause the contractor to immediately begin construction and to complete
such project according to the plans and specifications set forth in the construction contract.
Section 2. BENEFlTIED PROPERTY. The terms of this Section 2, as it applies to
Pioneer Trust Bank, N.A., Trustee for John N. Hooper ("PIONEER") shall be subject to the
terms of Section 3B below. The above described property owners consider that their properties
are being benefitted by the completion of such sewerage project in the proportions as set forth
on Exhibit B attached hereto. The property owners agree that their property is benefitted
according to their respective acreages, and each of the property owners shall cause a survey to
be made of its property and submit the surveyor's certified acreage, which will be final and
binding, since Exhibit B is on an estimated basis. Each of the property owners shall further
cause its surveyor to submit a legal description to the City of Woodburn setting forth a
surveyor's certified legal description for the property to be bound by this Agreement. Attached
hereto as Exhibit C are preliminary descriptions, which are estimated to be the actual legal
descriptions for the properties, but the surveyors' certified legal description shall be submitted
to the CITY and shall be conclusive and binding with respect to each owner. Such survey shall
be completed at the cost and expense of the individual owner ordering the survey.
Section 3. CHARGE IN LIEU OF A WCAL IMPROVEMENT DISTRICT
ASSESSMENT.
A. The terms of this paragraph A, with respect to the obligations of PIONEER, are
subject to the terms of paragraph B. The property owners normally would petition the CITY
to form a local improvement district in order to construct the improvements and amortize the
same over time. However, because of the emergency situation and the need to commence
construction immediately, there is no time to form a local improvement district and, therefore,
the property owners request that the CITY impose a charge in lieu of a local improvement
district assessment of $800.00 per acre for the 254.78 estimated acres, or a total charge of
$203,800.00, to be spread against the properties according to respective acreage as set forth on
Exhibit D attached hereto. The acreages set forth on Exhibit D are estimates, and each of the
property owners shall cause a surveyor to certify to the CITY the actual acreage benefitted from
his property, and such final certification of acreage shall be binding upon the parties. In no
event shall the cost to the property owners exceed the principal sum of $203,800.00 and the
balance of all costs shall be born by the CITY. In the event that project costs exceed the bid
for any reason, then the CITY shall be responsible for such payment, and in the event of cost
savings (other than deletions or restrictions of the scope of the work) then the savings shall inure
to the benefit of CITY. In the event that the scope of the project is substantially reduced then
the cost of those reductions shall be deducted from the contributions of the property owners
above described, then the cost of those reductions shall be deducted from the contributions of
the property owners above described. The $800.00 per acre charge in lieu of a local
improvement district assessment shall be repaid according to the schedule set forth on Exhibit
E, which is an estimation of the amortization of $1,000.00 of such principal cost at 6.5 % per
annum. The actual interest rate to be charged to the property owners shall be the same interest
rate as the CITY obtains from the State of Oregon on its loan described in Exhibit A, as
determined by State bond sale. Property owners shall not be required to make any payment until
January of 1994 since interest shall be deferred for the last quarter of 1991 and for the years of
1992 and 1993. Commencing January 1, 1994, payment shall be made by the owners to
amortize the principal and interest on the estimated basis set forth on Exhibit E attached hereto.
The parties understand that the actual amortization by payments may differ from Exhibit E
inasmuch as the interest rate is currently unknown and interest will only commence as and when
principal amounts are advanced, which will be on a periodic basis during construction. The
property owners agree that their properties are benefitted in proportion to their acreage as
estimated on Exhibit B and to be certified by survey. The property owners further agree that
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MISC\DI036.AGR
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their covenants hereunder, and their liability for repayment to the CITY, shall be a lien upon
their respective parcels of real property preliminary described on Exhibit C attached hereto with
certified surveyors' descriptions to be furnished to the CITY, and such liens to secure
performance as hereinafter set forth.
B. The terms of this Section 3 shall apply to PIONEER as follows:
(1) There shall be no charge imposed against PIONEER'S property until such
time as a sale to a third party is closed and the property is annexed to the City of
Woodburn.
(2) PIONEER shall not be required to provide a surveyor certified acreage
amount or a surveyed legal description of its property until such time as a sale to a third
party is closed and the property is annexed to the City of Woodburn.
(3) At such time as a sale by PIONEER to a third party is closed and property
is annexed to the City of Woodburn the charges described in paragraph A above shall be
imposed on the property which is sold and annexed at the rate of $800.00 per acre and
the sale agreement shall provide terms consistent with this subsection B.
(4) Upon the closing of any such sale, the Purchaser shall assume the
obligation to make payments attributable to the purchased properties according to the
terms of paragraph A.
(5) In the event any installment payment required under paragraph A has been
made prior to such purchase, Purchaser shall, within 30 days following the closing of
such purchase, reimburse any party or entity which made such payment for that part of
the payment which is attributable to the purchased property, plus interest thereon from
the date of the payment at the rate of 10% per annum.
(6) JACK FOX agrees, with respect to PIONEER'S 4.72 acre tract of 1-5, if
such property has not sold by January 1, 1994, he will assume and pay the installments
relating to such property, to be reimbursed as provided in section (5) above. GEORGE
F. BRICE, III and PRAIRIE CORPORATION make the same agreement to assume and
pay installments with respect to PIONEER'S 172.48 acre tract east ofI-5.
Section 4. TERMS OF AGREEMENT ARE COVENANTS. It is intended by all
parties to this Agreement that all terms of the Agreement shall constitute covenants, conditions
and restrictions running with title to the real properties covered by this Agreement, and shall be
binding upon the parties to the Agreement, their heirs, executors, and assigns, and shall be a
benefit and burden upon the properties described herein. The parties agree that CITY may, in
order to recover the costs of improvements described herein, levy assessments against the
properties for the specific purpose of enforcing the parties' respective obligations under this
Agreement and may enforce payment of said assessments in the manner provided by ORS
Chapter 223. Upon each party's completion of its respective obligations under this Agreement,
CITY shall release that party from CITY's right to secure that party's performance under this
Agreement by assessments.
Section S. ASSIGNMENT. The parties agree that the terms of this Agreement are
binding upon them as well as any successors in interest, heirs or assigns. Each party agrees that
prior to any assignment of their respective interest herein that they shall secure from their
respective assignees, as a condition of such assignment, the assignee's written Agreement to
carry out the assignor's obligations under this Agreement.
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Section 6. RECORDATION. Promptly after its execution by the parties, and its
authorization by the City of Woodburn's council, CITY shall record this Agreement in the
records of Marion County against each of the properties herein to provide public notice, and
especially notice to future owners of property described herein of the conditions, covenants, and
restrictions against title to the properties imposed by this Agreement.
Section 7. RELEASES. Any of the property owners may satisfy their obligations
hereunder with respect to specific acreage by paying unto CITY the amount of the per acre
assessment, plus interest with respect to that acreage, and thereupon obtain a release of such
acreage from this Agreement. In lieu of paying off such assessment in full with respect to such
acreage, such property owner may place cash in an interest bearing irrevocable escrow, or
similar account, under terms such that the principal cannot be released without the written
Agreement of CITY. Such escrow account will provide that accrued interest will be released
to the property owner depositing the funds, and in the event that the periodic payments of the
development liability for the acreage released is not made, then such payment shall be made
from escrow to the CITY. Upon deposit of the funds and the establishment of an escrow,
according to the terms of this paragraph, such acreage shall be released from the lien of this
Agreement by CITY.
Section 8. TERMINATION AND AMENDMENT. This Agreement shall be
terminated upon all parties completion of the obligations hereunder and may be amended by a
subsequent written agreement of all of the parties.
Section 9. ATTORNEY FEES. In the event of any suit or action to enforce this
Agreement, the prevailing party shall be entitled to, in addition to the statutory costs and
disbursements, reasonable attorneys fees to be fixed by trial and appellate courts from the time
such action is filed.
Section 10. SEVERABILITY. If any provision or part hereof is for any reason
determined by a court of competent jurisdiction to be invalid or unenforceable, then such part
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shall be severed from this Agreement and the remainder of the Agreement shall remain fully
enforceable,
DATED this
day of
, 1991.
DAVIDSON FARMS, INC.
PIONEER TRUST BANK, N.A.,
Trustee for John N. Hooper
By:
By:
President
By:
KLA W HOLDINGS
Secretary
PRAIRIE CORPORATION
By:
Keith L. Hershberger, Partner
By:
President
By:
A. Warde Hershberger, Partner
By:
Secretary
George F. Brice, III
Jack Fox
STATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared before me
, who is a of PIONEER
TRUST BANK, N.A., TRUSTEE FOR JOHN N. HOOPER and acknowledged the foregoing
instrument to be its voluntary act and deed.
Notary Public for Oregon
My Commission Expires:
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MISC\DI036.AGR
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STATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared DONALD J.
DAVIDSON and DORIS A. DAVIDSON who, being duly sworn, did say that the former is the
president and that the latter is the secretary of DAVIDSON FARMS, INC., an Oregon
corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors; and each of them acknowledged said instrument to be its
voluntary act and deed.
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared before me
the above named KEITH L. HERSHBERGER AND A. WARDE HERSHBERGER, co-partners
doing business as KLA W HOLDINGS, a partnership, and acknowledged the foregoing
instrument to be their voluntary act and deed.
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared
and who, being duly sworn,
did say that the former is the president and that the latter is the secretary of PRAIRIE
CORPORATION, an Oregon corporation, and that the seal affixed to the foregoing instrument
is the corporate seal of said corporation and that said instrument was signed and sealed on behalf
of said corporation by authority of its Board of Directors; and each of them acknowledged said
instrument to be its voluntary act and deed.
Notary Public for Oregon
My Commission Expires:
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MlSC\D1036.AGR
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ST ATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared before me the
above named GEORGE F. BRICE, m and acknowledged the foregoing instrument to be his
voluntary act and deed.
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON
)
) ss.
)
County of Marion
On this day of , 1991, personally appeared before me the
above named JACK FOX and acknowledged the foregoing instrument to be his voluntary act and
deed.
Notary Public for Oregon
My Commission Expires:
The City of Woodburn is executing this Agreement for the purpose only of
acknowledging and agreeing to the manner in which the property herein is being developed. The
City of Woodburn assumes no liability for any of the development contemplated by this
Agreement.
DATED this
day of
, 1991.
CITY OF WOODBURN
By:
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CITY OF WOODBURN
270 Montgomery Street · Woodburn, Oregon 97071 . 982-5222
August 13, 1991
Yvonne Addington
Manager, Oregon Community Development Programs
Economic Development Department
775 Summer St., N.E.
Salem, OR 97310
RE: Request for Additional Funds to Complete West Woodburn Sewerage Project,
Special Public Works Fund Award Contract #L91013
Dear Ms. Addington:
The City of Woodburn is trying to complete a much needed sewerage project to serve
the West and Southwest sections of town. Although the State has provided adequate
funding support based on the original estimates, the bids are much higher than
anticipated. Therefore, additional funding is necessary to accomplish the original goal of
completing the needed sewerage project approved by your department.
Originally it was expected that the sewerage project could be completed for $676,000.00
but after receiving the final bids we know that it will take an additional $359,585.00 to
complete the planned construction. Therefore, we request funding support as follows:
1. Grant $ 33.345.00
2. loan 257,S78:.&f ~
328.24 .
Total $ 290,919'00
359,565.0& ~
The entire funds received will be used for the construction of the sewer lines, pump
station and related engineering expenditures.
The security of the loan will be same as the original loan approved by you for this project.
We request that the payment schedule be made in a way that the first two years
payments are limited to the interest on the loan only. The other terms be the same as
the original grant approved by you for this project.
EXHIBIT A
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DAVIDSON
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69.13 Ac
172.4a Ac
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PIONEER
. .'TRUST
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Benefitted Property
Owners
Benefitted Property Owners to Share
Sewerage Improvement Cost (Additional)
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LEGEND
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EXHIBIT B
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PROPERTY LEGAL TAX LOT NUMBER
AND/OR LEGAL DESCRIPTION
PROPERTY
TAX LOT NUMBER
No. of Acres
a. Pioneer Trust (east of 1-5)
172.48
44159-000
44155-000
b. Pioneer Trust (west of 1-5) 4.72 44069-000
44072-000
c. KLAW Holdings 8.45 44075-234
44072-002
d. Davidson Farms 69.13 44158-000
Total 254.78
TAXLOT
Exhibit C
CALCULATION OF PROPERTY OWNERS' SHARES
No. of Acres
a. Pioneer Trust (east of 1-5) 172.48
b. Pioneer Trust (west of 1-5) 4.72
c. KLAW Holdings 8.45
d. Davidson Farms 69.13
Total 254.78
Total contribution
254.78 x $800 - $203,800
Funding needed =
$ 257,574
203,800
From property owners =
Balance (City support)
$ 53,774
Note 1. City will get back its investment through payments from other properties,
direct and indirect
SHARES Exhibit D
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