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HomeMy WebLinkAboutResolution - 2005-R0187 - Development Agreement - City View Christian Fellowship - Milwaukee Avenue - 04_28_2005Resolution No. 2005—RO187 April 28, 2005 Item No. 37 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Development Agreement for Design and Construction of Milwaukee Avenue between the City of Lubbock and City View Christian Fellowship. Said Development Agreement is attached hereto and incorporated in this Resolution as if fully set 'forth herein and shall be included in the minutes of the Council. Passed by the City Council this 28th day ATTEST: Reb cca Garza, City Secretary APPROVED AS TO CONTENT: Hertel, City Engineer Lee Ann Dumbauld, Chief Financial Officer APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney ml/ccdocs/Milwaukee Paving.City View Christian.res April 28, 2005 05. FILE AND RETURN t0 EA) BUCY R 04 17502 Deed of Trust Terms Date: April 28, 2005 Resolution No. 2005-RO187 WAL �.1S24PAGE'3OO Grantor: CHRISTIAN CITY VIEW FELLOWSHIP, a Texas tax-exempt nonprofit corporation Grantor's Mailing Address: City View Christian Fellowship P.O. Box 93657 Lubbock, TX 79423 Trustee: Lee Ann Dumbauld Trustee's Mailing Address: City of Lubbock Attn: Lee Ann Dumbauld P.O. Box 2000 Lubbock, TX 79457 Contractual Obligee ("Obligee"): CITY OF LUBBOCK Obligee's Mailing Address: P.O. Box 2000 Lubbock, TX 79457 Obligation: The contractual obligations of Grantor, including without limitation, the Obligation to pay to Obligee the sum of Three Hundred Forty Thousand and Five Hundred Sixty -Two Dollars ($340,562), with interest, as set forth by that certain Development Agreement for Design and Construction of Milwaukee Avenue, executed April 28, 2005, (the "Development Agreement") by and between Grantor and Obligee, the obligations being more particularly described therein, and incorporated herein by reference. Subordination: At the request of Grantor, Obligee will subordinate the lien created by this Deed of Trust to the lien created by that certain bond issue (the promissory note or notes, lien, bond and/or trust indenture, deed of trust and any other documentation executed and/or delivered in connection with the below VOL 9824PAQ301: described bond issue, are collectively referred to herein as the "Third Parry Lien"), being described as "Christian City View Fellowship, Issuer, First Mortgage Bonds, 2005 Series, Reliance Trust Company, as Trustee for First Mortgage Bondholders, a bank and trust company organized and existing under the laws of the State of Georgia, and San Joaquin Bank, a corporation, duly organized and existing under the laws of the State of California as co - beneficiaries" (collectively, the "Bond Trustee"), such funds to be solely utilized by Grantor to construct improvements on the Property, as defined below. Property (including any improvements): Being described on Exhibit "A," attached hereto and made a part hereof for all purposes. For value received, the receipt and sufficiency of which is hereby acknowledged, and to secure payment and performance of the Obligation, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property. On payment and performance of the Obligation and all other amounts secured by this deed of trust, this deed of trust will have no further effect, and Obligee will release it at Grantor's expense. Clauses and Covenants A. Grantor's Obligations Grantor agrees to- 1. keep the Property in good repair and condition; 2. pay all taxes and assessments on the Property before delinquency; 3. defend title to the Property and preserve the lien's priority as it is established in this deed of trust; 4. maintain, in a form acceptable to Obligee, an insurance policy that — a. covers all improvements for their full insurable value as determined when the policy is issued and renewed, unless Obligee approves a smaller amount in writing; b. contains an 80 percent coinsurance clause; C. provides all-risk coverage; VOL 9024PAG[302 d. protects Obligee with a standard mortgage clause; e. provides flood insurance at any time the Property is in a flood hazard area; and f. contains such other coverage as Obligee may reasonably require; 5. comply at all times with the requirements of the 80 percent coinsurance clause; 6. deliver the insurance policy to Obligee within ten (10) days of the date of this deed of trust and deliver renewals to Obligee at least fifteen (15) days before expiration; 7. obey all laws, ordinances, and restrictive covenants applicable to the Property; 8. keep any buildings occupied as required by the insurance policy; and 9. promptly notify Obligee in writing of any change of address. B. Obligee's Rights 1. Obligee may appoint, at any time and from time to time, in writing a substitute trustee, succeeding to all rights and responsibilities of Trustee. The appointment of a substitute trustee shall be at the discretion of Obligee. 2. Obligee may apply any proceeds received under the insurance policy either to reduce the Obligation or to repair or replace damaged or destroyed improvements covered by the policy. 3. Notwithstanding the terms of the Obligation to the contrary, and unless applicable law prohibits, all payments received by Obligee from Grantor with respect to the Obligation or this deed of trust may, at Obligee's discretion, be applied first to amounts payable under this deed of trust and then to amounts due and payable to Obligee with respect to the Obligation, to be applied to late charges, principal, or interest in the order Obligee in its discretion determines. 4. If Grantor fails to perform any of Grantor's obligations, Obligee may perform those obligations and be reimbursed by Grantor on demand for any amounts so paid, including attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in the Development Agreement for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of trust. 5. If there is a Default, as hereinafter defined, on the Obligation or if Grantor fails to VAL 9824PAGf303 perform any of Grantor's obligations and the Default continues after any required notice of the Default and the time allowed to cure, Obligee may, at its option — (a) remedy the Default by taking any action necessary to do so, including, without limitation, making any payments on principal, interest, penalties, and attorney's fees with respect to any prior lien debt, payment of insurance premiums, payment of taxes and assessments, or any other action that Obligee deems necessary to protect the lien created by this deed of trust. Any sums so paid shall bear interest from the dates of the payment at 6.75 percent per year, shall be paid by Grantor on demand, and shall become a part of the debt secured by this deed of trust and recoverable as such in all respects; (b) declare all sums, including the unpaid balance and earned interest on the Obligation and further secured by this deed of trust, immediately due, and shall demand payment by either a written demand served personally on Grantor or mailed to Grantor at P.O. Box 93657, Lubbock, Texas 79423; and/or (c) direct Trustee to foreclose this lien as provided herein. 6. Obligee may remedy any Default without waiving it and may waive any Default without waiving any prior or subsequent Default. C. Trustee's Rights and Duties 1. If after Default, the debt is declared due, the Trustee, or Trustee's successor or substitute as provided herein, shall enforce this trust by foreclosing the lien, if requested to do so by Obligee or Obligee's agent. In foreclosing the lien, Trustee, personally or by agent, shall do the following — (a) Advertise the time, place, and terms of the sale of the Property for twenty-one (21) days prior to the day of sale by posting written notices on the courthouse door, or at another place as may be designated for such notices to be posted, of each county in which the Property is situated. (b) File these notices in the office of the county clerk of each county in which the Property is situated at least twenty-one (21) days prior to the proposed sale date. (c) Send written notice of the time, place, and terms of the sale of the Property by certified mail to each person obligated to pay the debt secured by this Deed of Trust according to the records of Obligee at least twenty-one (21) days preceding the date of the sale at the most recent address as shown by the VAL 98024Pa E 4 records of Obligee. (d) Sell the Property "AS IS" at public auction in accordance with the notice at the courthouse door, or at other such place as may be designated by the county, of the county in which the Property is situated (provided when the Property is situated in more than one county, the Property may be sold at the courthouse door, or other place designated by said county, of any one of these counties, and the notices shall designate the county where the Property will be sold), on the first Tuesday in any month between the hours of 10:00 a.m. and 4:00 p.m., to the highest bidder for cash, selling all of the Property as an entirety or in such parcels as the Trustee may elect. (e) Convey title to the Property to the purchaser or purchasers, with general warranty binding Grantor, Grantor's heirs, personal representatives, successors, and assigns, but without representation or warranty, express or implied, by Trustee; (f) From the proceeds of the sale, pay in this order: (i) All the expenses of advertising the sale and making the conveyance. (ii) To Obligee the full amount of principal, interest, attorney's fees, and other charges due and unpaid on the Obligation, pursuant to the Development Agreement, and all other debt secured hereby. (iii) Any amounts required by law to be paid before payment to Grantor (iv) The balance of the sales price, if any, to Grantor, Grantor's heirs, personal representatives, successors, and assigns. D. General Provisions 1. In case the lien shall be foreclosed by Trustee's sale or by judicial action, the purchaser at the sale shall receive immediate possession of the Property as an incident to the purchaser's ownership. Grantor agrees that if Grantor or anyone claiming under Grantor shall hold possession of the Property, or any part of it, subsequent to foreclosure, the party or parties holding possession shall be considered as tenants at sufferance of the purchaser at the foreclosure sale, and shall be subject to an action for forcible detainer. 2. Recitals in any trustee's deed conveying the Property will be presumed to be true as to the matters therein stated, and all prerequisites to the sale shall be presumed to have been performed. The sale and conveyance shall be conclusive against Grantor, Grantor's heirs, V11L 9824PACE305 personal representatives, successors, and assigns. Obligee may be a purchaser at any such foreclosure sale, and on being the highest bidder, may have the amount for which the Property is sold credited on the debt secured by this deed of trust. 3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. 4. This lien will remain superior to liens later created even if the time of payment or performance of all or part of the Obligation is extended or part of the Property is released. 5. If any portion of the Obligation cannot be lawfully secured by this deed of trust, payments will be applied first to discharge that portion. 6. Grantor assigns to Obligee all amounts payable to or received by Grantor from condemnation of all or part of the Property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the Property. After deducting any expenses incurred, including attorney's fees and court and other costs, Obligee will either release any remaining amounts to Grantor or apply such amounts to reduce the Obligation. Obligee will not be liable for failure to collect or to exercise diligence in collecting any such amounts. Grantor will immediately give Obligee written notice of any actual or threatened proceedings for condemnation of all or part of the Property. 7. Grantor assigns to Obligee absolutely, not only as collateral, all present and future rent and other income and receipts from the Property. Grantor warrants the validity and enforceability of the assignment. Grantor may as Obligee's licensee collect rent and other income and receipts as long as Grantor is not in default with respect to the Obligation or this deed of trust. Grantor will apply all rent and other income and receipts to payment and performance of the Obligation and performance of this deed of trust, but if the rent and other income and receipts exceed the amount due with respect to the Obligation and the deed of trust, Grantor may retain the excess. If Grantor defaults in payment of the Obligation or performance of this deed of trust, Obligee may terminate Grantor's license to collect rent and other income and then as Grantor's agent may rent the Property and collect all rent and other income and receipts. Obligee neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Obligee may exercise Obligee's rights and remedies under this paragraph without taking possession of the Property. Obligee will apply all rent and other income and receipts collected under this paragraph first to expenses incurred in exercising Obligee's rights and remedies and then to Grantor's obligations with respect to the Obligation and this deed of trust in the order determined by Obligee. Obligee is not required to act under this paragraph, and acting under this paragraph does not waive any of Obligee's other rights or remedies. If Grantor becomes a voluntary or involuntary debtor in bankruptcy, Obligee's filing a proof of claim in bankruptcy will be deemed equivalent to the appointment of a receiver under Wt 982 4 PAGE300 Texas law. 8. Interest on the debt secured by this deed of trust will not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess will be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides any conflicting provisions in this and all other instruments concerning the debt. 9. In no event may this deed of trust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law. 10. When the context requires, singular nouns and pronouns include the plural. 11. The term Obligation includes, but is not limited to, all extensions, modifications, and renewals of the Development Agreement and all amounts and performances secured by this deed of trust. 12. The term Default includes, but is not limited to, the occurrence of any of the following events: (a) The failure of Grantor to pay the debt or otherwise perform the Obligation secured by this deed of trust or any part of it, as they become due according to the terms of the Development Agreement, or when accelerated, pursuant to any power to accelerate. (b) The failure of Grantor punctually and properly to perform the Obligation or any other covenant, agreement, or condition contained in this deed of trust or the Development Agreement. (c) The failure of Grantor punctually and properly to perform any covenant, agreement or condition contained in, or otherwise be in default under, the Third Party Lien. 13. This deed of trust binds, benefits, and may be enforced by the successors in interest of all parties. 14. Grantor and each surety, endorser, and guarantor of the Obligation waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. V4L 9824 PAc[30'7 15. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and other costs of enforcing Obligee's rights under this deed of trust if this deed of trust is placed in the hands of an attorney for enforcement. 16. If any provision of this deed of trust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. 17. Grantor represents that this deed of trust is given and granted to secure the contractual obligations of Grantor under the Development Agreement. The Development Agreement provides for, among other things, the payment by Grantor of funds due to Obligee regarding the costs associated with the paving, drainage, water, and sewer infrastructure related to the Milwaukee Project, as defined in the Development Agreement. 18. Grantor agrees to execute, acknowledge, and deliver to Obligee any document requested by Obligee, at Obligee's request from time to time, to (a) correct any defect, error, omission, or ambiguity in this deed of trust or in any other document executed in connection with the Development Agreement or this deed of trust; (b) comply with Grantor's obligations under this deed of trust, the Development Agreement and other documents; (c) subject to and perfect the liens and security interests of this deed of trust and other documents any property intended to be covered thereby; and (d) protect, perfect, or preserve the liens and the security interests of this deed of trust and other documents against third persons or make any recordings, file any notices, or obtain any consents requested by Obligee in connection therewith. Grantor agrees to pay all costs of the foregoing. 19. Grantor represents and warrants to the City that (i) Grantor is a tax-exempt nonprofit corporation, duly organized and existing in good standing under the laws of the state of Texas, and has the power and authority to own and encumber its properties and assets, including the property covered by this deed of trust; (ii) Grantor has the power and requisite authority to execute, deliver and perform this deed of trust and the Development Agreement; Grantor is duly authorized to, and has taken all action necessary to authorize Grantor to execute, deliver and perform this deed of trust and the Development Agreement and is and will continue to be duly authorized to perform this deed of trust and the Agreement; and (iii) this deed of trust and the Development Agreement are legal and binding obligations of Grantor, enforceable in accordance with their respective terms. 20. This written deed of trust represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. Executed this 28th ATTEST: VAL 9824PAG[308 day of April , 2005. -�- `3' SEAL Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: ar4Hert , City Engineer 524"&g Leigh Ann Dumbauld, Chief F-Irmcial Officer APPROVED AS TO FORM: Richard K. Casner, First Assistant City Attorney State of Texas County of Lubbock This instrument was acknowledged before me on this �ng( day of 2005 by Marc McDougal as Mayor of the City of Lubbock. ✓" °r CELIA WEBB Notary PubNc, 3ta� of Texas My Comtrsa�o� Expires c4h�-— Notary Public, State of Texas My commission expires: 03-OC- a 006 SEAL VI)L 9824M.E309 CHRISTIAN CITY VIEW FELLOWSHIP Title: (�tJ �.,;•f/�It%�'�i'� STATE OF TEXAS COUNTY OF L The foregoing instrument was acknowledged before me on this 2SMday of 2005> by 0C'•-rcd' of DAVY M. :HxE'Notary Public, Texasivty Commisires Notary Public in and for the State of Texas 1?-SS L:Cityatt/Richard/Miwaukee Ave Paving Project.beed of Trust .redin.ampt SEAL Resolution No. 2005-R0187 Vi,L 982.4rArF310 EXHIBIT "A" MlTL•:S AND BOUNDS DESCRIPTION of a 64.790 acre tract of land located in Section 37,13loek Ah. Lubbock Gwaty. Texas, same bans a portion ora 213.127 acre uxt. being fnha dacri as folknrrs: . BEGINNING at a 1/2" iroa rod with cap set in the West tine of Section 37. Block AK. same being in the South line orthat 600 f" x 130 foot drainage casement recorded in Volume 6422. Page 130, Real Pnv" Records of Lubbock County. Texas. which bears N. 00VT E.. 2&k23 rest from a 54' iron rod round at the common section corner of Sections 33, 36, 37. & 33. Blck:k_AK' , Lubbock County. Texas; THLTICE N. t)0'0T E. along the West line of Section 37. Hlock AK. a distance of 1000.08 feet to a 112- iron rod with cap set at a point curvattut:; THENCE Northeasterly, around a curve to the right, said curve having a radius of $05.00 rcct. a central angle or 2e3S, I ow. tangent lengths of 190.19 fact. and a chord distance of 370.19 feet to a IR" iron rod with cap set at a point of reverse cure w=. T MNCE Northeasterly, around a curve to the Ic(L said curve having a radius of 805.00 red. a central angle or2604U400. tangent lengths or 190.87 feet. and a chord distance of 371.44 feet to a M" iron rod with cap set at a point or tangency; THL•T1CL• N. 00"0110" E a distance of 100.00 rcct to a 1/2" iron rod with cap win the South right of way line orthe Wtw Tcxas and Lubbock Railroad. *same being the North line of said 213.127 acre tract; THENCE S. 72"08' E. along the South right of way line of the West Texas and Lubbock Railroad. same being the North line of said 218.127 acre tract. at 2031.37 feet pass a 1/2" iron rod with cap found in reference, continuing along the South right of way line of the West Texas and Lubbock Railroad, same being the North line orsaid 218.127 acre tract. ror a total distance of 2068.87 fcct to a 1R" iron rod with cap set- THL•'tiCE S. 17.5: W. a distance of 790.32 rcct to a 1/2" iron rod with cap set; THL'NCE S. 53.54' W. a distance of 591.81 feet to a 112" iron rod with cap sct; COUNTY CLERKS MEMO THLNCL West a distance of 627.23 rest to a Ir2" iron rod with cap set; PORTIONS OF THIS t)OCUMENT NOT lEGW THENCE South a distance of 97.50 rent to a 1/2" iron rod with cap set; WHEN RECEVED THENCL N. 89.33' 10" W, a distance or 795.00 rcet to the Point or Beginning. Bearings relative to the South right-of-way line of the West Texas and Lubbock Railroad as being previously described as S. 7200V E c eGLilTY GLr.^.;!s,�!s".P^rE( Crtt#STY,T��AS a lAt t_ Ut- 1 EXAb COUNTY OF LUBBOCK I hereby Certify that Ihia xfstrumeni was FILED on the date and at the rirmo stamped hereon by me and was duly RECORDED m the Volume and Page or the Off"I Pubk Reeds of Lut=ck County. Texas as stamped hereon by me MAY 6 ZG05 k X'4� cowfry CL[r K uAlsohi t Cots1Yr its » Resolution No. 2005-RO457 SUBORDINATION OF DEED OF TRUST The undersigned, City of Lubbock, Texas, recorded a Deed of Trust interest in some of the property described in Exhibit "A" (the "Property") dated April 28, 2005 in Volume 9824, Page 300, Official Public Records, Lubbock County, Texas securing the payment of contractual obligations of Christian City View Fellowship, including without limitation the obligation to pay the City of Lubbock the sum of $340,562.00(the "City of Lubbock Deed of Trust"). Pursuant to the terms of the City of Lubbock Deed of Trust, the City of Lubbock, Texas hereby subordinates the priority of the City of Lubbock Deed of Trust described above in favor of the lien of the First Mortgage Bonds, 2005 Series A in the amount of $3,750,000 by Christian City View Fellowship as set forth below (the "Bond Deed of Trust") in the same manner and with the same effect as though the Bond Deed of Trust had been recorded prior to the filing for record of the City of Lubbock Deed of Trust, but without otherwise affecting the City of Lubbock Deed of Trust. • Deed of Trust, Assignment of Rents and Security Agreement, Financing Statement and Fixture Filing dated August 18, 2005 in favor of Reliance Trust Company and San Joaquin Bank in the amount of $3,750,000 Executed the 21st day of September, 2005 CITY OF LUBJBOCK UGAL, MAYOR ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: L e Ann Dumbauld, City Manager APPROVED AS T FORM: Richard K. Casner First Assistant City Attorney STATE OF TEXAS § COUNTY OF LUBBOCK § The foregoing instrument was acknowledged before me on the 21st day of September, 2005 by Marc McDougal, Mayor of the CITY OF LUBBOCK. E 0on CELIA WEBBMY COWWWW Bon 03.01-M mURichard/City View Christian. Subordination of Deed September 15, 2005 Notary Public, State of Texas My commission expires: 03-0 -,z0a6 Resolution No. 2005—RO457 EXHIBIT "A" LEGAL DESCRIPTION Tract 1: mrM AND EOSt IX DS0C2Wn0NI of a 60" aces teats of had located in Stetim 37. 31odt AK. LwA*%* County, Texas, rase ban s porboa at a 21t.127 acre tract, ban; twdw described as follows EtGi1',%VC. at a 112" iron rod will esp %mad in the Wass Mier at Sectiow 37, Bloch AK, rattle bdag is the Somk lima of that 600 toes 11" foot drNoap eaaeaDeat laceetkd In VOW= "M Page M Real Property Records of Lubbock County, Texas, wbieb bears N . 06*07 L. 264M fist &am a SM Iron rod [cued at the tomnod sorties corner of Secdoee 35, 36, 37 a 31.1llock AIC, Lubbock CouW, Ted TMNCE ,V. 06-V L, sl0ft eba Wag line Seetios 37,1lleek AK, a distance of 1000.00 hat to a 1/2" iron rod with cap round at a POW of curvature; 1to the rWaf, said ehave riving a radkv of 8b.00 feet. s eentral asek et 26•351IV, watdst lengths of 190.It tat, and a cbatd distsam of 370.19 het to a IW iron rod wltk cap towd at a point of reverse tar+ *w*; TiI NCE Math tastaly, around a am to the kh, said curet bavictt a radish of $�0l�5.00 feet, a general angle of 26•40'.t0% twSW lengths of 19037 taooa t, and a chord distaat 371.44 feat to a 140 iron rod with cap found at a POW at "emr, TH$.%XT N. 0016P30" E. a distance of 106.00 ten to a 1/2" bvm rod with tap tetrad is the South right of nay Use of the West Tons and Lubbock Railroad, same beast the -iaoth Una of mid 2111.127 ten tract; THENCE S. 72'00' L. slams dw Soutb rit'kt of wT line of the Weft Texas and Lubbock Railroad, lame bein the North Une of grid 218.121 aem grad, at 2031.37 feet peas a 1!2" 'son rod with cap Guad in rafermu. cootisuiat abut the South right of way lice of the West Tons sad Lubbock Railroad, swu bdag the North Use of said 21L 127 Mae tract. for a total dhshmet of I"." lot to a 1/2" iron rod with cap hPJI ' THENCE S. 170a W. a diet men of 790.32 feat to a 112" iron rod with UP famed; THENCE S. S3054 W. a distance of 591.61 fat to a 1/1" it" rod with aP found; THLNCE Wat a dirtaace of 627.23 feat to a 1n" iron had with eaP found; TM CS South a dieianco or $7A Gat to s 1/2" it= rod with CAP found; 7YiENCE N. t9'SY10" W, r ditraaa of 79S.IN fat to sloe POL�tI' OF 111rG1AtvC�G. SAVE A.ND EXCEPT that poetics data tea west and ldpthwest side dediated for Street n sea 'Oak i# lamsn oaths dated April 27, Z"S. sad retarded h Vdotac WS, Page 12l, Of W FhtbW Se`cords. Lubbock County, Tana. A FORMON OF THE ABOVE DESCRIBED PROPERTY TO 11,E DEDICATED AND PLATTED AS TRACT "A", CITY VIEW CAINUS. Tract 2: Pri.att Nowness Agreanew for Access at sat forth is 1wwwmmtt dated Narch i, 2M, recorded is Volume 903t, Tags g, Official Pttblk Records, Lubbock County. Tors, oxaoM by H. A. Sastiaas to Christian City Vies► Fellowship, a Texas sosprolit corporation and as het forth i. Warnmy Deod dated Noverobor 17. 2003, recorded io Voksma t793, Page 326, Ot7leid Toblle Steer& Lubbaek Cousin, Tyros, a mcuted by IL A. Sea loss to Cbristtaa City View PedowdMp, a Texas norhpeotit corporstkm STATE OF TEXAS § COUNTY OF LUBBOCK § DEVELOPMENT AGREEMENT for DESIGN and CONSTRUCTION of MILWAUKEE AVENUE This Development Agreement ("Agreement") is entered by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and Christian City View Fellowship, a Texas tax-exempt nonprofit corporation (the "Developer"). WITNESSETH: WHEREAS, Developer owns real property adjacent to Milwaukee Avenue, located within the corporate limits of the City; and WHEREAS, Developer is required, pursuant to Chapter 25 of the Code of Ordinances of the City, to participate in the paving of Milwaukee Avenue, and to bear the cost of such participation; and WHEREAS, the City, as a public purpose and to realize cost savings due to economies of scale and due to drainage and infrastructure installation, such as stormwater, water, sewer, and other utility pipelines, desires to design and construct Milwaukee Avenue, from 34d' Street to 92°d Street, as a project; and WHEREAS, the Developer, due to the economic benefit it will enjoy from the construction of such improvements in the manner desired by the City, joins the City in such desire; and WHEREAS, the City and Developer now desire to enter into this Agreement wherein Developer unconditionally agrees to pay to City Developer's allocated portion of the cost related to the design and paving of Milwaukee Avenue and the installation of the utility infrastructure, being drainage, water and sewer. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein, the City and Developer agree as follows: ARTICLE 1. Developer Participation 1.01 Developer agrees to pay to City the Actual Bid Cost (as defined below) regarding Developer's share of the Milwaukee Project (as defined below), said funds to be used for the street paving, drainage, water and sewer construction of Milwaukee Avenue, as set forth in Section 1.03, below. The description of the project, as set forth herein, is depicted on Exhibit "A", attached hereto (the "Milwaukee Project") and fully incorporated herein by reference as if fully restated. 1.02 Developer has previously dedicated, at no cost to the City, all lands and real property interests necessary, as determined by City, for the paving and drainage, water, sewer and street lighting construction of the Milwaukee Project. City has provided to Developer a description of such lands and real property interests necessary for the Milwaukee Project, as depicted on Exhibit "A", attached hereto, on or about February 1, 2005. The dedication hereof is subject to all valid and subsisting instruments now filed of record in the Real Property Records of Milwaukee Paving Project Agreement Page 2 of 19 Lubbock County, Texas, encumbering the lands to be dedicated to the City. 1.03 The City has previously determined an estimate of the cost of Developer's share of the Milwaukee Project, said estimate being the sum of Three Hundred Twenty - Four Thousand, Three Hundred Forty -Five Dollars ($324,345) (the "Estimated Amount"). Developer, notwithstanding the Estimated Amount set forth herein, unconditionally agrees to pay to City its share of the total actual bid cost as has been determined by the response to the City's request for bids awarded by the City Council of the City of Lubbock and excluding any additional costs associated with change orders to the public works contract, of the Milwaukee Project (the "Actual Bid Cost"). The Actual Bid Cost, and the items thereof, are more particularly described on Exhibit `B", attached hereto. Notwithstanding the unconditional payment obligation of Developer to pay the Actual Bid Cost of the Milwaukee Project, it has been agreed between City and Developer that in the event the Actual Bid Cost of the Milwaukee Project is greater than the Estimated Amount plus an additional five percent (5%) of the Estimated Amount, which is the case, the Developer is only obligated to pay to the City the sum of the Estimated Amount plus an additional five percent (5%) of the Estimated Amount. The sum payable to City by Developer, as set forth in Section 1.05, below, is the Actual Bid Cost, computed as per the terms of this Section 1.03. 1.04 The City shall construct the Milwaukee Project in accordance with all applicable laws, and has competitively bid construction of the project where required by applicable law. Developer stipulates and agrees that the City may competitively Milwaukee Paving Project Agreement Page 3 of 19 bid areas of Milwaukee Avenue not located within the areas of the Milwaukee Project. 1.05 The Actual Bid Cost, computed as set forth in Section 1.03, above, due and owing City by Developer is Three Hundred Forty Thousand, and Five Hundred Sixty - Two Dollars ($340,562). Developer shall pay the City the Actual Bid Cost, in form satisfactory to the City, at P.O. Box 2000, Lubbock, Texas 79457 Attn: City Engineer of the City of Lubbock, together with interest (calculated on a 365 or 366 day year, as appropriate), computed from the date of the execution hereof by the City to April 1, 2012 at the rate per annum which shall from day-to-day be equal to the lesser of (i) the maximum non -usurious rate, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness represented by this contractual obligation; and (ii) six and seventy- five hundredths percent (6.75 %). Principal and accrued interest on this obligation, computed as aforesaid, shall be due and payable to the City as follows: (i) in six (6) equal annual installments, each in the amount of Sixty Two Thousand, Three Hundred Forty -Nine and 67/100 Dollars ($62,349.67), commencing on April 1, 2006, and thereafter on the first day of April of each succeeding calendar year through and including April 1, 2011; and (ii) in one final installment, on April 1, 2012, in the amount of the unpaid principal balance and accrued unpaid interest on this obligation as of such date. Milwaukee Paving Project Agreement Page 4 of 19 The obligations of Developer under this Agreement are secured by a Deed of Trust (herein so called), of even date herewith, from Developer to Lee Ann Dumbauld, Trustee, for the benefit of City, covering that certain property described on Exhibit "C", attached hereto (the "Security Property") and being owned by Developer in the vicinity of the Milwaukee Project and located in Lubbock County, Texas, as more fully described therein. Developer shall provide to the City, at Developer's sole cost and expense, a mortgagee's title insurance policy, insuring the City's second lien interest and position (after subordination, as provided in below) in the property covered by the Deed of Trust, containing only the standard printed exceptions, and otherwise in form and substance satisfactory to the City. At the request of Developer, City shall subordinate its lien to the lien created by that certain bond issue (the promissory note or notes, lien, bond and/or trust indenture, deed of trust and/or any other documentation executed and/or delivered in connection with the below described bond issue, are collectively referred to herein as the "Third Party Lien"), being described as "Christian City View Fellowship, Issuer, First Mortgage Bonds, 2005 Series, Reliance Trust Company, as Trustee for First Mortgage Bondholders, a bank and trust company organized and existing under the laws of the State of Georgia, and San Joaquin Bank, a corporation, duly organized and existing under the laws of the State of California as co -beneficiaries" (collectively, the "Bond Trustee"), in form and substance satisfactory to City, Developer, and Bond Trustee, securing funds loaned or bonded to Developer and utilized by Developer solely for the construction of buildings and parking facilities on the Security Property. Milwaukee Paving Project Agreement Page 5 of 19 Developer reserves the right to prepay the outstanding principal balance of this obligation, in whole or in part, at any time and from time to time without premium or penalty. Any such prepayments shall be made together with payment of interest accrued on the amount of principal being prepaid through the date of such prepayment, and shall be applied to the installments of principal due under this obligation in the inverse order of maturity. Notwithstanding any provision contained in this Agreement, or any other document executed or delivered in connection herewith, the City shall never be deemed to have contracted for or be entitled to receive, collect or apply as interest on this obligation, any amount in excess of the maximum non -usurious rate, and in the event that the City ever receives, collects or applies as interest any such excess, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of this obligation, and if the principal balance of this obligation is paid in full, any remaining excess shall be refunded by City to Developer. 1.06 No fees or costs shall be due or payable from the Developer to the City upon the platting of property owned by Developer for the paving or drainage improvements on Milwaukee Avenue, or the adjacent mains for water and sewer installed with the Milwaukee Project. However, normal water tap, water meter, sewer tap or other fees for service will be required. Milwaukee Paving Project Agreement Page 6 of 19 ARTICLE 2. Term 2.01 The term of this Agreement shall begin on the date of execution of this Agreement by City, and shall terminate upon the complete performance of all obligations by each party to this Agreement. ARTICLE 3. Indemnity 3.01 Developer agrees to defend, - indemnify, and hold City, its officers, agents, employees, and elected officials, harmless from and against any and all claims, lawsuits, liabilities, judgments, costs and expenses for any harm for which recovery of damages is sought that may arise out of, be occasioned by or related to Developer's breach of any of the terms or provisions of this Agreement. 3.02 The construction of the Milwaukee Project, including without limitation, potable water infrastructure, is anticipated to be completed on or before April 1, 2006 and the City will utilize reasonable efforts to complete the Milwaukee Project on or before such date. Notwithstanding the commitment by the City to use reasonable efforts to complete the Milwaukee Project by such date, Developer expressly acknowledges that delays in construction, such as those caused by or related to weather conditions and other force majeure events, may occur causing a delay in the completion of the construction of the Milwaukee Project. The Developer may coordinate with the Water Utilities Department of the City to construct and/or pay for the extension of water main service to the development site owned by Developer and adjacent to Milwaukee Avenue ("Developer's Milwaukee Paving Project Agreement Page 7 of 19 Milwaukee Property") prior to construction of the water main with the Milwaukee Project, should water service be needed before it can be made available as a part of the Milwaukee Project. The costs and construction of the extension of the water main described herein shall be consistent with normal development and property platting procedures of the City. The costs associated with this water main extension, if the Developer chooses to extend prior to the water line construction of the Milwaukee Project, will be deducted from the water main costs included in this Agreement. 3.03 Although access to Developer's Milwaukee Property from Milwaukee Avenue may not be available during certain times of the construction of the Milwaukee Project, the City will utilize reasonable efforts to coordinate with the construction contractors during construction of the Milwaukee Project to allow Developer temporary access points from Milwaukee Avenue, or a temporary access road behind the east curb of Milwaukee Avenue, during construction to Developer's Milwaukee Property. Further, City will utilize reasonable efforts to assist the Developer in securing permission for access to the Developer's Milwaukee Property over and across adjacent lands for temporary access from the east side of the Developer's Milwaukee Property of Developer, from the intersection of 45`h Street and Ironton Avenue. 3.04 As concerns issues regarding fire safety and suppression, building permits will be issued to Developer subject to review and approval by the City of site plans and/or initial building plans of Developer, such approval to be contingent upon the availability of approved access to the construction site and building(s) for fire Milwaukee Paving Project Agreement Page 8 of 19 apparatus from the nearest paved public street as well as the availability of an approved source of water with adequate fire hydrants prior to erection of combustible construction materials or building dry -in, whichever occurs first. ARTICLE 4. Events of Default / Remedies 4.01 (a) An "Event of Default" shall exist if any one or more of the following events (collectively called "Events of Default") shall occur and be continuing: (i) Events of Default for City: City shall fail to perform or observe any material covenant or obligation contained in this Agreement. (ii) Events of Default for Developer: A. Developer shall fail to pay when due any principal of, or interest on, the payment obligation in Article 1, above; B. any representation or warranty of Developer made under this Agreement, or the Deed of Trust, that shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; C. a default shall occur in the performance of any of the covenants or agreements of Developer contained in this Agreement or in the Deed of Trust; D. this Agreement or the Deed of Trust, through no fault of City, shall cease to be a legal, valid, and binding agreement enforceable against Developer in accordance with the respective terms thereof, or shall in any way be terminated, or become, or be declared ineffective or inoperative or shall in any way whatsoever cease to Milwaukee Paving Project Agreement Page 9 of 19 give or provide the respective liens, powers or privileges intended to be created thereby; E. Developer shall (i) apply for, or consent to, the appointment of a receiver, trustee, custodian, intervenor or liquidator of itself or of all or a substantial part of its assets, (ii) file a voluntary petition in bankruptcy or admit in writing that it is unable to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) file a petition or answer seeking reorganization of an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, (v) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding, or (vi) take action for the purpose of effecting any of the foregoing; or F. an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking reorganization of Developer or appointing a receiver, custodian, trustee, intervenor or liquidator of Developer, or all or substantially all of its assets; or G. Developer shall fail to punctually and properly perform any covenant, agreement or condition contained in, or otherwise be in default under, the Third Party Lien. 4.02 If an Event of Default shall occur and be continuing, after ten (10) days written Milwaukee Paving Project Agreement Page 10 of 19 notice to cure such default, (i) in the event of a continuing default by City, Developer may pursue any and all remedies it may be entitled to at law, contract, or equity, excepting termination and/or rescission; or (ii) in the event of a continuing default by Developer, City may, (a) declare the principal of, and all interest then accrued on the obligation set forth in Article 1 to be immediately due and payable, whereupon the same shall become due and payable without presentment, demand, protest, notice of default, notice of acceleration or of intention to accelerate or other notice of any kind, to the extent permitted by law, all of which Developer hereby expressly waives, anything contained herein or in the Deed of Trust to the contrary notwithstanding, (b) reduce any claim to judgment, (c) without notice of default or demand, pursue and enforce any of City's rights and remedies under the Deed of Trust, and/or (d) pursue any and all remedies City may be entitled to at law, contract or equity. All of the remedies provided herein are expressly cumulative and the exercise of one or more remedies shall not preclude the simultaneous or subsequent exercise of different or additional remedies. ARTICLE 5. Miscellaneous 5.01 This Agreement is performable in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock County, Texas. This Agreement shall governed by and construed in accordance with the laws of the State of Texas. 5.02 Any notice required by this Agreement shall be deemed to be properly served, if Milwaukee Paving Project Agreement Page I I of 19 (i) provided in person or by telephonic facsimile; or (ii) deposited in the United States mail by certified letter, return receipt requested, addressed to the recipient at recipient's address shown below, subject to the right of either party to designate a different address by notice given in the manner just described. Notice shall be deemed to be received when delivered if provided in person or by telephonic facsimile or, if deposited in the United States mail, as set forth above, (4) days after depositing such notice in the United States mail, as set forth above. For City: Lou Fox, City Manager City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-2051 and Lee Ann Dumbauld, CFO City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile: 806-775-2051 with copy to: Larry Hertel, City Engineer City of Lubbock P.O. Box 2000 Lubbock; Texas 79457 Facsimile No. 806-775-3074 and: Richard Casner, First Assistant City Attorney City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-3307 Milwaukee Paving Project Agreement Page 12 of 19 For Developer: Dr. Gary Kirksey City View Christian Fellowship P.O. Box 93657 Lubbock, Texas 79493 Facsimile No. 806-771-2703 with copy to: Michael P. Reed P.O. Box 65013 Lubbock, Texas 79464 Facsimile No. 906-794-7776 5.03 In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not in any way affect any other provision hereof and this Agreement shall be considered as if such invalid, illegal or unenforceable provision had never been contained in this Agreement. 5.04 City and Developer each bind themselves and their successors and permitted assigns to the other party of this Agreement. Developer may not assign its obligations under this Agreement without the advance written consent of the City. City may provide or withhold its consent at its sole discretion. City may condition its consent on any terms it believes are necessary or advisable, including without limitation, the express written stipulation that Developer shall not be released from liability for performance of any obligation to City contained in this Agreement or Deed of Trust. 5.05 City, pursuant to Resolution Number 4475, as amended by Resolution Number 2003-R0352, adopted a paving policy (the "Policy") wherein the financial Milwaukee Paving Project Agreement Page 13 of 19 obligations of the paving of streets within the City of Lubbock were apportioned between City and developers. The apportionment of the financial obligations of the paving of the Milwaukee Project, as prescribed by this Agreement, differs in certain respects from that set forth in the Policy. Accordingly, to the extent the Policy conflicts with this Agreement, the terms of this Agreement shall control and the Policy shall be considered to be amended by this Agreement, insofar and only insofar, as the Policy affects the Milwaukee Project. 5.06 To induce the City to enter into this Agreement, Developer represents and warrants to the City that (i) Developer is a tax-exempt nonprofit corporation, duly organized and existing in good standing under the laws of the state of Texas, and has the power and authority to own, encumber, and/or convey its properties and assets, including the property covered by the Deed of Trust; (ii) Developer has the power and requisite authority to execute, deliver and perform this Agreement and the Deed of Trust; Developer is duly authorized to, and has taken all action necessary to authorize Developer to execute, deliver and perform this Agreement and the Deed of Trust and is and will continue to be duly authorized to perform this Agreement and Deed of Trust; and (iii) this Agreement and the Deed of Trust are legal and binding obligations of Developer, enforceable in accordance with their respective terms. ARTICLE 6. Non -Appropriation 6.01 City and Developer herein recognize that the continuation of any agreement at the close of any given fiscal year of the City of Lubbock, Texas, which fiscal year Milwaukee Paving Project Agreement Page 14 of 19 ends on September 30 of each year, shall be subject to Council budget approval of the City, providing for or covering such agreement item as an expenditure therein. The City does not represent that said budget item will actually be adopted as this determination is within the sole discretion of the City Council. The parties enter into this Agreement on the 28th day of April, 2005. CITY OF LUBBOCK ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT Larry Hert 1, City Engineer LI.G " Lee Ann Dumbauld, Chief Financial Officer APPROVED AS TO FORM: s Richard K. Casner First Assistant City Attorney Milwaukee Paving Project Agreement Page 15 of 19 CHRISTIAN CITY VIEW FELLOWSHIP i Title: _ 6;6V E1QN) tiiC1 6i-Dar?" Richard/Milwaukee Ave paving Project.Christian City View.Agreement.redln.accept April 20, 2005 Milwaukee Paving Project Agreement Page 16 of 19 1— W W M I' —— - — - — - — - — - — - — - — - — ----- - — - — - — - — - — - — - — — — PROPOSED EXTENSION OF MILWAUKEE AVENUE 34TH STREET TO 98TH STREET ------------ EXHIBIT A PROPERTY OWNER MAP CRY VIEW CHRISTIAN J Exhibit "B" City View Christian Church Landowner Cost Participation Milwaukee Project (April 26, 2005) Preliminary Costs Based on Estimate Actual Bid Paving $1525935 $1495939 Drainage $ 64,765 $ 79,020 Water $ 58,226 $ 62,330 Sewer $ 48,419 $ 57,453 Total $32411345 $3485,742 Per Agreement, City View Christian Church Share = 5% More Than Estimated Amount = $3405562 Milwaukee Paving Project Agreement Page 18 of 19 EXHIBIT "C" METUS AND BM''NDS DESCRIPTION of a 64.740 acre tract of land located in Section 37. Block AK, Lubbock County. Texas. sane beans a portion of a 21&127 acre tract being trtttlter described as toltows; . BEGINNING at a IR' lion rod with cap set in the West line of Section 37. Block AN.. sum being in the South line or that 600 rivet x 130 foot drainage easement recorded in Volume 6422. Page 130. Real Property Reeoeds *(Lubbock County. Tex^ which bean N. 00'07' 8, 264.23 feet from a Slit" iron rod found at'the common suction comer of Sections 33. 36, 37. A 33. tllock,AK; Lubbock County. Texas; THL;NC1: N. oo-oT E. along the West line of Section 37, Block AK. a distance or 1000.08 feet to a Ur iron rod with cap sd at a point curvature; THL-4C.E Natheasterty, around a curve to the night. said curve having a radius of 303.00 fem a central angle of 26.35100. tansou lengths of 190.19 fact. and a chord distance of 370.19 feet to a I/r iron rod with cap set at a point of reverse curnauq- 7111:NCC Northcastcrty, around a curve to the Ick said curve having a radius of 303.00 root. a central angle of 26.40'40". tan" lengths of 190.37 feet. and a churl riistancc or 371.44 rcct to a Ur iron rod with cap set at a point of tantcncy; 71UNCE N. 00401W E. a distance or 100.00 rcct to a IR' iron rod with cap set in the South right of way line of the West Taus and Lubbock Railroad. same being the North line of said 218.127 ace tract; THENCE S. 72008' E. along the South right of way line of the West Texas and Lubbock Railroad. sane being the North line of said 21S.127 acre tract. at 2031.37 reel pass a 1/r iron rod with cap round in rercrertce, continuing along the South right of way line ofthe Wca Texas and Lubbock Raitroad..sarne being the North line orsaid 21 L127 ate tract. rot a total distance of 2063.37 red to a 1W iron rod with cap set; THENCE S. 17.32' W. a distance of 790.32 feet to a I Ir iron rod with cap set; TIMNCE S. 5305+' W. a distance or 591.31 feet to a 1/20 iron rod with cap set; . THENCE West a distance or 627.23 rvwt to a 1120 iron rod with cap act; T111 NCE South a distance of $7.50 reef to a Ira" iron rod with cap set; THIENCL' N. SVSTIV W. a distance of 795.00 feet to the Point'of Beginning. uemings relative to the South right-oP *2y line or rho Weil Texas and Lubbock Railroad as being previously described as S. 7200V E.