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1996 Lawsuits
IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BLUEBONNET SAVINGS 36-2435132 • BANK FSB, ••• Plaintiff, EQUITY ` 400oVoJ vs . ORIGINAL NOTICE RANDY L. McELVAIN; HILLS BANK • AND TRUST COMPANY; CITY OF IOWA • CITY, IOWA and ACCENT SERVICE • COMPANY, INC. , •• • Defendants . : TO THE ABOVE NAMED DEFENDANTS : You are hereby notified that there is now on file in the office of the Clerk of the above court, a petition in the above entitled action, a copy of which petition is attached hereto. The Plaintiff' s attorneys are Petosa, Petosa, Boecker & Nervig, L.L. P. by Theodore R. Boecker, whose address is 4400 Westown Parkway, Regency West 7 * Suite 400, West Des Moines, Iowa 50266-6756 . You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file, a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, Iowa, judgment by default will be rendered a.ain for the relief demanded in the petition. ;WY' EDWARD F. STEINBRECH I.% Clerk of the Ab• ,e Court , Johnson County Courthouse Iowa City, I. a 52240 NOTE: The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. up en CD r— C.,--t N '..,,.. �• ' �. a If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at . (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942. ) C-1 N .w. IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY `° BLUEBONNET SAVINGS 36-2435132 • BANK FSB, • Plaintiff, : EQUITY NO. .X05'7, v s . • e/ • PETITI64' RANDY L. McELVAIN; HILLS BANK • f_d AND TRUST COMPANY; CITY OF IOWA • . CITY, IOWA and ACCENT SERVICE COMPANY, INC. , .• - Defendants . : y . . The Plaintiff for cause of action states : 1 . That the Plaintiff, Bluebonnet Savings Bank FSB, is a corporation with its principal place of business in the State of Texas . 2 . That on or about June 15, 1978, Randy L. McElvain made, executed and delivered to American Federal Savings and Loan Association of Central Iowa, their promissory note in writing for the sum of $37, 300 . 00 payable in installments, with interest at 9- per annum from date a copy of said note being attached hereto and made a part hereof as Exhibit "A" . 3 . That on or about June 15, 1978 , in order to secure the payment of said note, the said Randy L. McElvain made, executed and delivered to American Federal Savings and Loan Association of Central Iowa, a real estate mortgage on the following described real estate, to-wit : Lot Five (5) in Lafferty Subdivision of Part of the Northeast Quarter of the Southwest Quarter of Section 14 , Township 79 North, Range 6 West of the 5th P.M. , according to the Plat thereof recorded in Plat Book 5 , page 40, Plat Records of Johnson County, Iowa, 1 which said mortgage was filed for record June 16 , 1978, in Book 256 , page 227, in the Recorder' s Office of Johnson County, Iowa, a copy of said mortgage being attached hereto and made a part hereof as Exhibit "B" . 4 . That on or about November 29, 1990, the above note and mortgage were assigned to Bluebonnet Savings Bank FSB, which assignment was filed January 18 , 1991, in Book 1198 , page 292 in the Recorder' s Office of Johnson County, Iowa. 5 . That Plaintiff is the sole and absolute owner of the mortgage above mentioned; that said note and mortgage provide that if default be made at any time in payment of any installment of principal or interest, at the election of the Plaintiff, all indebtedness, without notice of such election, shall become immediately due and payable; that Plaintiff by reason of the failure of the mortgagor to pay said installments, declares said note in default, that there is now due and owing Plaintiff the sum of $26 , 407 . 67 with interest at 9% per annum from and including February 1, 1996 , plus accrued late charges in the amount of $60 . 04 plus advances in the amount of $60 . 26 . 6 . That said note and mortgage provide that if suit be commenced thereon, mortgagors will pay reasonable attorneys' fees; that an attorneys' fee affidavit is attached hereto and made a part hereof as Exhibit "C" . 7 . That the Plaintiff alleges that whatever right, _.titliPor interest in or lien upon said real estate said Defendants mayr- have is junior to the right, title and interest of Plainn€iff,`cby virtue of said mortgage, which this Plaintiff avers to be a prior lien upon said real estate, the rents and profits therefrom. 8 . That Hills Bank and Trust Company is named as a party Defendant because of a mortgage dated June 5, 1995, executed by Randy L. McElvain to Hills Bank and Trust Company for $24 , 900 . 00, which mortgage was filed June 9, 1995, in Book 1914 , page 325 in the Recorder' s Office of Johnson County, Iowa. 9 . That City of Iowa City, Iowa, is named as a party Defendant because of ICSTIC048410 entered October 23 , 1995 , against Randy Lynn McElvain and in favor of City of Iowa City, Iowa. 10 . That Accent Service Company is named as a party Defendant because of Case No. 41871, Docket 66 , page 191, entitled Accent Service Company, Inc. , Plaintiff vs . Randy L. McElvain, Defendant, wherein judgment was entered against the Defendant on July 3 , 1996 . 11 . That in the event Plaintiff is required to advance additional sums for taxes, sewer rental, solid waste assessments or insurance on said real estate, the Plaintiff should be given an additional lien thereon for such amounts so advanced. 12 . That said mortgage provides that any time after the proper commencement of an action in foreclosure or during the period of redemption, the Court having jurisdiction of the case shall, at the request of the mortgagee, appoint a recei' r take immediate possession of said property and of the refits profits accruing therefrom, to rent the same as he may ae,em est m 3 X; — r for the interest of all parties concerned and shall be liable to account to the mortgagor only for the net profits after application of rents, issues and profits upon the cost of the expense of receivership and foreclosure and the indebtedness, charges and expenses hereby secured and herein mentioned. WHEREFORE THE PLAINTIFF PRAYS THE COURT: 1 . That the Plaintiff have personal judgment against Randy L. McElvain and judgment in rem against the property involved in this action for the amount of unpaid principal and interest on said note, as provided in said note and mortgage and for attorneys' fees, abstract expense and costs . 2 . That a receiver be appointed immediately to take care of, manage, lease and collect the rents from said real estate, and to apply the same in payment of costs and expenses of said receivership, repairs and expenses of said real estate, accrued and accruing taxes and special assessments, insurance premiums, and in partial payment of the judgment to be entered herein. 3 . That said judgment, together with interest, attorneys' fees, abstract expense, costs and accruing costs be decreed a prior lien upon said real estate from the date of said mortgage, and that all rights, interests and equities of all Defendants to this suit be declared junior to the right, title and interest of the Plaintiff . 4 . That in the event Plaintiff is required to advance °' further sums for taxes or insurance premiums on said rel_:este.;�y QD the Plaintiff should be given an additional lien thereon-'for A,uch- cp 4 �� amounts so advanced. 5 . That said mortgage be foreclosed and the Defendants' equity of redemption be barred and foreclosed save as guaranteed by law; that special execution issue for the sale of said real estate to satisfy said judgment, interest, attorneys' fees and costs . 6 . That Plaintiff be granted such further relief as may be just and equitable . PETOSA, PETOSA, BOECKER & NERVIG, L.L. P. By %fit(,l!✓/l/%x- Theodore R. Boecker PK0000439 4400 Westown Parkway Regency West 7 * Suite 400 West Des Moines, Iowa 50266-6756 Telephone : (515) 222-9400 ATTORNEYS FOR PLAINTIFF cx' c) c� F._ • 17, 5 NOTE q,5i/g04/ US 5 37300.0' DE iioiiTSIt 1.. JUN' ,Iowa Ciry JUI E 15 19 FOR VALUE RECEIVED, the undersigned ("Borrower") promise(s) to pay ,i."i:ICi ri:�i:r.L SAVIi1CS AND Lam=.: = >CCIATIO Or CENTRAL ID or order, the principal sum of 7 ai^.'I?-SLV is T: %;: OUS •'DTH HU:— "D AHD ?:C, /1'00 - Dollars, with interest on the unpaid principal balance from the date of this Note. until paid, at the rate. of . . . . . . . . . . ( 9.0L0%) percent per annum. Principal and interest shall be payable at SD(Tii ACS G12A1:U, DES :•LINES, IOWA D0307 or such other place as the Note holder may designate, in consecutive monthly installments of rrRE NIUI= ALD 14/100 ----�-- Dollars (US $ 300'14 ), on the 1STday of each month beginning `''�U T , 19.'.b .. Such monthly installments shall continue until the entire indebtedness evidenced by this Note is fully paid, except that any remaining indebted- ness, if not sooner paid, shall be due and payable on JULY 0. 2006 If any monthly installment under this Note is not paid when due and remains unpaid after a date specified by a notice to Borrower. the entire principal amount outstanding and accrued interest thereon shall at once become due and payable at the option of the Note holder. The date specified shall not he less than thirty days from the date such notice is mailed. The Note holder may exercise this option to accelerate during any default by Borrower regardless of any prior forbearance. •If suit is brought to collect this Note, the Note holder shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to, reasonable attorney's ffees. 5Borrower shall pay to the Note holder a late charge of 0 percent of any monthly installment not received by the Note holder within FIFTEEN (15) days after the installment is due. Borrower may prepay the principal amount ow:standing in whole or in part. The Note holder may require that any partial prepayments (i) be made on the date monthly installments are due and (ii) be in the amount of that part of one or more monthly installments which would be applicable to principal Any partial prepayment shall be applied against the principal amount outstanding and ehall not postpone the due date of any subsequent monthly installments or change the amount of such installments, unless the Note holder shall otherwise agree in writing. If, within five years from the date of this Note, Borrower make(s) any prepayments in any twelve month period beginning with the date of this Note or anniversary dates thereof ("loan year") with money lent to Borrower by a lender other than the Note holder, Borrower shall pay the Note holder (a) during each of the first three loan years 4.500 percent of the amount by which the sum of prepayments made in any such loan year exceeds twentyrcent of the original principal amount of this Note and (b) during the fourth and fifth loan years 3.000 percent of the amount by which the sum of prepayments made in any such loan year exceeds twenty percent of the original principal amount of this Note. Presentment, notice of dishonor, and protest arc hereby waived by all makers, sureties, guarantors and endorsers hereof. This Note shall be the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns. Any notice to Borrower provided for in this Note shall be given by mailing such notice by certified mail addressed to Borrower at the Property Address stated below, or to such other address as Borrower may designate by notice to the Note holder. Any notice to the Note holder shall be given by mailing such notice by certified mail, return receipt requested, to the Note holder at the address stated in the first paragraph of this Note, or at such other address as may have been designated by notice to Borrower. The indebtedness evidenced by this Note is secured by a Mortgage, dated JUNE 15, 197E , and reference is made to the Mortgage for rights as to acceleration of the indebtedness evidenced by this Note. rn je?Agrif iOr m. . 1;.7:DY ,n.CELVAI.: �_; ,t..,.i. 1109 PIi E SThEE`T r. . •. j•Y =�. 7.d Ia;A CITY, IOWA 52240 '✓ cti Property Address (Execute Original Only) 9 C IOWA-1 to 4 Family-6175—FNMAIFHLMC UNIFORM INSTRUMENT EXHIBIT "A" �o Q ui is �, _ .. • • MORTGAGE THIS MORTGAGE is made this 15TH day of JUNE 19.7N.,between the Mortgagor, RANDY L. I•rELVAIN , A SINGLE PERSON (herein"Borrower"),and the Mortgagee AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF CENTRAL lath ,a corporation organized and existn�a¢under the laws of THE UNETED STATES OF AMERICA whose address is 17c17t AND GRAtd), DES MOINES, IOWA 50307 (herein"Lender"). WHEREAS Borrower is indebted to Lender in the principal sum of --'----'—" --' THIRTY-SEVL THOJSAND THREE: HUNDRED AND MI /1 hors, which indebtedness is evidenced by Borrower's note dated hh5c'iS. 1478 (herein "Note"), providing for monthly installments of principal and interest,with the balance of the indebtedness,if not sooner paid,due and payable on JULY 01, 2008 To SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note, with interest thereon, the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage,and the performance of the covenants and agreements of Borrower herein contained,and(b)the repayment of any future advances,with interest thereon, made to Borrower by Lender pursuant to paragraph 21 hereof (herein "Future Advances"),Borrower does h reby_mortgage, grant and convey to Lender the following described property located in the County of , State of Iowa: LOT FIVE (5) IN LAFFERTY SUDDIVISICN OF PART OF THE NORTH EAST QUARTER OF THE SOUTINEST QUARTER OF SECTION 14, TQdN- SIfIP 79 NORTH, RANGE 6 WEST OF THE 5TH P.M., ACCORDING TD THE PLAT THEREOF REODRDED IN PLAT BOOK 5, PAGE 40, FIAT RECORDS OF JOHNSON COUNTY, IQJA. I Ct. 12819 • BOOK SGE FILED 2 1978 JUN 16 PH 1: 41 (94. RECORDER JOHNSON CO.. 10 THIS IS A PURCHASE MONEY I.IORTGAGE. c Cl t1109 PINE STREIiT ICWA CITY "�• m-.,t which has the address off ,..ti.`;„ J IQA 52240 Ist,eet (Coo _ ,f'• T,z (herein"Property Address"); • [Stale and Zip eodel f' TOGETHER with all the improvements now or hereafter erected on the property, and all easemcntPr'ihts, appurtenances, rents, royalties, mineral,oil and gas rights and profits, water, water rights, and water stocir,''attd all fixtures now or hereafter attached to the property,all of which,including replacements and additions theretcf'Ihall be deemed to be and remain a part of the property covered by this Mortgage;and all of the foregoing,together with said t� property(or the leasehold estate if this Mortgage is on a leasehold) are herein referred to as the"Property". Borrower covenants that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property, that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands,subject to any declarations,casements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring Lender's interest in the Property. 227 IOWA—t tot Family-6l75—FNMA/FHLMC UNIFORM INSTRUMENT ML 19 • EXHIBIT "B" • UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: I. Payment or Principal and Interest. Borrower shall promptly pay when due the principal of and interest on the indebtedness evidenced by the Note,prepayment and late charges as provided in the Note,and the principal of and interest on any Future Advances secured by this Mortgage. 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly installments of principal and interest are payable under the Note,until the Note is paid in full, a sum (herein "Funds") equal to one-twelfth of the yearly taxes and assessments which may attain priority over this Mortgage,and ground rents on the Property.if any.plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insurance,if any,all as reasonably estimated initially and from lime to time by Lender on the basis of assessments and bills and reasonable estimates thereof. The Funds shall be held in an institution the deposits or accounts of which are insured or guaranteed by a Federal or state agency(including Lender if Lender is such an institution). Lender shall apply the Funds to pay said taxes,assessments. insurance premiums and ground rents. Lender may not charge for so holding and applying the Funds,analyzing said account, or verifying and compiling said assessments and hills,unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. Borrower and Lender may agree in writing at the time of execution of this Mortgage that interest on the Funds shall he paid to Borrower, and unless such agreement is made or applicable law requires such interest to be paid,Lender shall not he required to pay Borrower any interest or earnings on the Funds. Lender shall give to Borrower,without charge.an annual accounting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for the sums secured by this Mortgage. If the amount of the Funds held by Lender. together with the future monthly installments of Funds payable prior to the due dates of taxes,assessments,insurance premiums and ground rents,shall exceed the amount required to pay said taxes, assessments. insurance premiums and ground rents as they fall due. such excess shall be, at Borrower's option, either promptly repaid to Borrower or credited to Borrower on monthly installments of Funds. If the amount of the Funds held by Lender shall not be sufficient to pay taxes, assessments. insurance premiums and ground rents as they fall due, Borrower shall pay to Lender any amount necessary to make up the deficiency within 30 days from the date notice is mailed by Lender to Borrower requesting payment thereof. Upon payment in full of all sums secured by this Mortgage, I.ender shall promptly refund to Borrower any Funds held by Lender. If under paragraph 18 hereof the Property is sold or the Property is otherwise acquired by Lender, Lender shall apply,no later than immediately prior to the sale of the Property or its acquisition by Lender, any Funds held by Lender at the time of application as a credit against the sums secured by this Mortgage. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under the Note and paragraphs I and 2 hereof shall be applied by Lender first in payment of amounts payable to Lender by Borrower under paragraph 2 hereof,then to interest payable on the Note,then to the principal of the Note,and then to interest and principal on any Future Advances. 4. Charges;Liens. Borrower shall pay all taxes. assessments and other charges, fines and impositions attributable to the Property which may attain a priority over this Mortgage,and leasehold payments or ground rents,if any,in the manner provided under paragraph 2 hereof or,if not paid in such manner,by Borrower making payment, when due,directly to the payee thereof. Borrower shall promptly furnish to Lender all notices of amounts due tinder this paragraph,and in the event Borrower shall make payment directly. Borrower shall promptly furnish to Lender receipts evidencing such payments. Borrower shall promptly discharge any lien which has priority over this Mortgage; provided. that Borrower shall not be required to discharge any such lien so long as Borrower shall agree in writing to the payment of the obligation secured by such lien in a manner acceptable to Lender,or shall in good faith contest such lien by,or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Property or any part thereof. 5. Hazard Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured • against loss by fire,hazards included within the term"extended coverage", and such other hazards as lender may require and in such amounts and for such periods as Lender may require;provided,that Lender shall not require that the amount of such coverage exceed that amount of coverage required to pay the sums secured by this Mortgage. The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided, that such approval shall not be unreasonably withheld. All premiums on insurance policies shall be paid in the manner provided under paragraph 2 hereof or.if not paid in such-manner,by Borrower making payment,when due,directly to the insurance carrier. All insurance policies and renewals thereof shall be in form acceptable to Lender and shall include a standard mortgage clause in favor of and in form acceptable to Lender. Lender shall have the right to hold the policies and renewals thereof, and Borrower shall promptly furnish to Lender all renewal notices and all receipts of paid premiums. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Mortgage would be impaired.the insurance proceeds shall be applied to the sums secured by this Mortgage. with the excess, if any, paid to Borrower. If the Property is abandoned by Borrower,or if Borrower fails to respond to Lender within 30 days from the dale notice is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Prc +�erty or to the sums secured by this Mortgage. (J Unless Lender and Borrower otherwise agree in writing,any such application of proceeds to principal shall not ea tend or postpone the due date of the monthly installments referred to in paragraphs I and 2 hereof or change the amowrt_of such installments. If under paragraph 18 hereof the Property is acquired by Lender,all right,title and interest of Borrower /`� in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to�We-sale g or acquisition shall pass to Lender to the extent of the sums secured by this Mortgage immediately prior to such sale or acquisition. 6. Preservation and Maintenance of Property; Leaseholds; Condominiums; Planned Unit Developments. Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of tiproperly t . f" and shall comply with the provisions of any lease if this Mortgage is on a leasehold. If this Mortgage is on a uunit in a1 condominium or a planned unit development. Borrower shall perform all of Borrower's obligations under the.dcffiiration; _ l Lender's written agreement or applicable law. Borrower shall pay the amount of all mortgage insurance premiums in the manner provided under paragraph 2 hereof. Any amounts disbursed by Lender pursuant to this paragraph 7, with interest thereon, shall become additional indebtedness of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof,and shall beat interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Note unless payment of interest at such rate would be contrary to applicable law,in which event such amounts shall bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph 7 shall require Lender to incur any expense or take any action hereunder. R. Inspection. Lender may make or cause to he made reasonable entries upon and inspections of the Property,provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to Lender's interest in the Property. 9. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property,or part thereof,or for conveyance in lieu of condemnation,are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Mortgage. with the excess, if any, paid to Borrower In the event of a partial taking of the Property, unless Borrower and Lender otherwise agree in writing. there shall be applied to the sums secured by this Mortgage such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this Mortgage immediately prior to the date of taking bears to the fair market value of the Property immediately prior to the date of taking.with the balance of the proceeds paid to Borrower. if the Property is abandoned by Borrower,or if.after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date such notice is mailed, Lender is authorized to collect and apply the proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Mortgage. Unless Lender and Borrower otherwise agree in writing,any such application of proceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs 1 and 2 hereof or change the amount of such installments. 10. Borrower Not Released. Extension of the time for payment or modification of amortization of the sums secured by this Mortgage granted by Lender to any successor in interest of Borrower shall not operate to release. in any manner, the liability of the original Borrower and Borrower's successors in interest. Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower and Borrower's successors in interest. II. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder,or otherwise afforded by applicable'law, shall not he a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance of the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of life indebtedness secured by this Mortgage. 12. Remedies Cumrtlalive. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity,and may be exercised concurrently,independently or successively. 13. Successors and Assigns Bound: Joint and Several Liability; Captions. The covenants and agreements herein contained shall hind.and the rights hereunder shall inure to. the respective successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17 hereof. All covenants and agreements of Borrower shall be joint and several. The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to he used to interpret or define the provisions hereof. 14. Notice. Except for any notice required under applicable law to be given in another manner. (a) any notice to Borrower provided for in this Mortgage shall he given by mailing such notice by certified mail addressed to Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein, and (b)any notice to Lender shall he given by certified mail, return receipt requested. to Lender's address staled herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein. 15. Uniform Mortgage:Governing Law:Severability, This form of mortgage combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. This Mortgage shall be governed by the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Mortgage or the Note conflicts with applicable law. such conflict shall not-affect 1.0 other provisions of this Mortgage or the Note which can he given effect without the conflicting provision. anefttr. this 01 end the provisions of the Mortgage and the Note are declared to be severable. 16. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and of this Mortgage at�the`tiine of execution or after recordation hereof. if 17. Transfer of the Property:Assumption. If all or any part of the Property or an interest therein is sold or Nabsferrcd "w by Borrower without Lender's prior written consent, excluding (a) the creation of a lien or encumbrance subordinate 101.0 this Mortgage. (h) the creation of a purchase money security interest for household appliances. (c) a transfer-►r8.devise. descent or by operation of law upon the death of a joint tenant or(d)the grant of any leasehold interest of three.y.gms or lest not containing an option to purchase, Lender may at l.ender's option.declare all the sums secured by this Mstjlpale to he- s d 4 immediately due and payable. Lender shall have waived such option to accelerate if. prior to the sale or tracer Lend and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit o/-spch person. is satisfactory to Lender and that the interest payable on the scums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17. and if Borrower's successoredra interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note. If Lender exercises such option to accelerate. Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fnilc to pay such sums prior to the expiration of such period, Lender may,without further notice or demand on Borrower.invoke any remedies permitted by paragraph I R hereof. NON-UNtrORM COVENANTS. Borrower and fender further covenant and agree as follows: 18. Acceleration;Remedies. Except as provided in paragraph 17 hereof,upon Borrowers breach of any covenant or agreement of Borrower in this Mortgage,including the covenants to pay when due any suers secured by this Mortgage,Lender prior to acceleration shall mail notice to Borrower as provided in paragraph 14 hereof specifying:(1)the breach;(2)the action required to cure such breach;(3)a dale,not less than 30 days from the date the notice is mailed to Borrower.by which such breach must be cured;and (4)that failure to cure such preach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage,foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the breach is not cured on or before the date specified in the notice,Lender may declare all of the stints secured by this Mortgage to he immediately due and payable without further demand and may foreclose this Mortgage by judicial proceeding. Lender shall he entitled to collect in such proceeding all expenses of foreclosure,including,hut not limited to, reasonable attorney's fees, and costs of documentary evidence,abstracts and title reports. 19. Borrower's Right to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Mortgage. Borrower shall have the right to have any proceedings begun by Lender to enforce this Mortgage discontinued at any time .229 prior to entry of a judgment enforcing this Mortgage if: (a) Borrower pays 1.ender all sums which would be then slue under this Mortgage.the Note and notes securing Future Advances.if any, had no acceleration occurred: (h) Borrower curet all breaches of any other covenants or agreements of Borrower contained in this Mortgage; (c) Borrower pays all reasonable expenses incurred by Lender in enforcing the covenants and agreements of Borrower contained in this Mortgage and in enforcing Lender's remedies as provided in paragraph IR hereof,including.hut not limited to,reasonable attorney's fees;and Id) Borrower lakes such action as Lender may reasonably require to assure that the lien of this Mortgage.Lender's interest in the Property and Borrower's obligation to pay the sums secured by this Mortgage shall continue unimpaired. Upon such payment and cure by Borrower,this Mortgage and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 20. Assignment of Rents; Appointment of Receiver. As additional security hereunder. Borrower hereby assigns to (.ender the rents of the Property.provided that Borrower shall.prior to acceleration tinder paragraph IS hereof or abandon- ment of the Property,have the right to collect and retain such rents as they become due and payable. Upon acceleration tinder paragraph IR hereof or abandonment of the Property,and at any time prior to the expiration of any period of redemption following judicial sale.Lender shall be entitled to have a receiver appointed by a court to enter upon,take possession of and manage the Properly and to collect the rents of the Property including those past due. All rents collected by the receiver shall he applied first to payment of the costs of management of the Property and collection of rents. including,but not limited to.receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Mortgage. The receiver shall be liable to account only for those rents actually received. 21. Future Advances. Upon request of Borrower.Lender,at Lender's option prior to release of this Mortgage, may make Future Advances to Borrower. Such Future Advances,with interest thereon,shall he secured by this Mortgage when evidenced by promissory notes stating that said notes are secured hereby. At no time shall the principal amount of the indebtedness secured by this Mortgage,not including sums advanced in accordance herewith to protect the security of this Mortgage,exceed the original amount of the Note. 22. Release. Upon payment of all sums secured by this Mortgage, Lender shall release this Mortgage without charge to Borrower. 23. Waiver of Dower,Homestead and Distributive Share. Borrower hereby relinquishes all right of dower and hereby waives all right of homestead and distributive share in and to the Property. Borrower hereby waives any right of exemption as to the Property. 24. Redemption Period. If the Property is less than ten acres in size and if Lender waives in any foreclosure proceeding any right to a deficiency judgment against Borrower, then the period of redemption from judicial sale shall be reduced to six months. If the court finds that the Property has been abandoned by Borrower and if Lender waives any right to a deficiency judgment against Borrower,then the period of redemption from judicial sale shall be reduced to sixty days. The provisions of this paragraph 24 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the 1975 Code of Iowa. • IN WITNESS WHEREOF,Borrower has executed this Mortgage. .t • n-• L VAIN —Borrower —Borrower STATE of IOWA, JOHNSON County ss: On this 15TH day of JUNE , 19.??.,before me,a Notary Public in the State of Iowa, personally appeared RANDY L. PICELVAIN r A SINGLE, P$RSQN ,to me personally known to be the person(s) named in and who executed the foregoing instrument,and acknowledged that . ...e cu ed the same as th?}p voluntary act and deed. 1 4441 4 CURT 'HEID7 9 �/ My Commission 41f. dS EXPIRES Notary Public In and for said County and state • s ISpace Below This Line Reserved For Lender and Recorder) t31 • t'. csi 2 3o AFFIDAVIT STATE OF IOWA ) SS COUNTY OF POLK ) I , Theodore R. Boecker, being first duly sworn, upon oath depose and state that I am one of the attorneys for the Plaintiff in this cause; that I am a regular practicing attorney engaged in this case; that there has been no agreement, express or implied, between myself and my client, or between myself and any other person except attorneys associated with me in this case, for any sharing or division of the attorney fees to be taxed herein. I further depose and state that the note and mortgage and any other documents declared upon in the foregoing Petition are now in my actual possession; that I have read the above and foregoing Petition, know the contents thereof, have personal knowledge of the facts therein stated, and that the statements and allegations therein are true as I verily believe . Theodore R. Boecker PK0000439 Subscribed and sworn to before me this -- (( day of July, 1996 , at Des Moines, Iowa . _ » ). � � ' „CG. f ..RL"_FIT` ,`� MY MMlsSONE?FTRES ' N ary Public in and: or ie - ' y State of Iowa-, ' V • Zs" ‘ moi/ EXHIBIT "C" U7 END OF CASE FILE C:E'4 RECEIVED LAW OFFICES OF LEFF, HAUPERT 8c TRAW, L.L.I'. JUN 2 5 1996 222 SOUTH LINN STREET MAILING ADDRESS P.O.SOX 2447 /_TELEPHONE: ARTHUR O.LEFT(1906-1988) CITY ATTORNEY'S OFF:GRD)336.7931 PHILIP A.LEFF IOWA CITY, IOWA H. BRUCE HAUPERT 52244-2447 FAX: CHARLES T.TRAW (319)338-9902 RANDALL B.WILLMAN STEVEN E.BALLARD MARK C DANIELSON June 24, 1996 Mr. Dennis Mitchell Assistant City Attorney Civic Center Iowa City, Iowa 52240 Re : Currier, et al . v. City of Iowa City Dear Mr. Mitchell : We represent plaintiffs in the above matter . This lawsuit was filed with the Johnson County Clerk on Friday, June 21, 1994 . In the interests of courtesy and convenience, I enclose an Acceptance of Service in connection with this litigation . We also enclose two sets each of an Original Notice, Petition at Law and Jury Demand. If you are agreeable, would you please accept service , of these pleadings on behalf of the City of Iowa City, Iowa and return the Acceptance to me? Upon receipt of the Acceptance, we will file it and make certain a file-stamped copy is forwarded to you . Should these arrangements be unacceptable to you, please contact me immediately. Thank you for your consideration. Very truly yours, AlIEFF, HAUPE• , & TRAW, L.L.P . L 111k' pl A / lie R. Hammer . egal Assistant to liD CIN Steven E . Ballard o ( JRH/imm nr� PJ J7 Enclosures cc: Sandra J. Currier. :<rr. 3 _ � c>.--2. h o, c- 72. r. IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY C ="A;- -v Ld SANDRA J. CURRIER, EVERETT ) CURRIER, TABITHA RASMUSSEN, ) O and KARISSA RASMUSSEN, ) fri crt Individually, and SANDRA J. ) CURRIER, as Next Friend of ) i 4C VD 5-7303 CHRISTIANA RASMUSSEN, ) LAW NO. �i SHOSHANNA RASMUSSEN, ARIANA ) RASMUSSEN, SETH LEATON, AYLAS ) LEATON, RAINA LEATON, and ) ELIJA CURRIER, Minor Children, ) .13 JURY DEMAND Plaintiffs, ) �- ) ri i T N v. _ CITY OF IOWA CITY, IOWA, Defendant . ) •c.,. =4" o COMES NOW plaintiffs , by and through counsel , and in accordance with Iowa R.Civ. P. 177 (1996) , hereby request trial by jury of all issues herein. -111)‘1L°12"4"- 1se Randall B. Willman, 0000080 fN'Y- 1� Steven E. Ballard, 000011391 LEFF, HAUPERT & TRAW 222 S . Linn St . , P.O. Box 2447 Iowa City, Iowa 52244-2447 Phone: (319) 338-7551 Fax: (319) 338-6902 ATTORNEYS FOR CLAIMANT /sh IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY SANDRA J. CURRIER, EVERETT ) CURRIER, TABITHA RASMUSSEN, ) and KARISSA RASMUSSEN, ) Individually, and SANDRA J. ) CURRIER, as Next Friend of ) LAW NO. /-196Y057-30 3 CHRISTIANA RASMUSSEN, SHOSHANNA RASMUSSEN, ARIANA ) RASMUSSEN, SETH LEATON, AYLAS ) LEATON, RAINA LEATON, and ) ELIJA CURRIER, Minor Children, ) ORIGINAL NOTICE Plaintiffs, ) V. ) .y ut c- y CITY OF IOWA CITY, IOWA, ) -o Defendant . ) 0 E' ct' TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court , a Petition in the above- entitled action, a copy of which Petition is attached hereto. The Plaintiff ' s attorneys are Randall B. Willman and Steven E. Ballard, of Leff, Haupert, Traw & Willman, L.L. P. , whose address is 222 South Linn Street, P. 0 . Box 2447, Iowa City, Iowa, 52244- 2447, (319) 338-7551 . YOU ARE FURTHER NOTIFIED that unless, within twenty (20) days after service of this Original Notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the County Courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. EDWARD F. STEINBRECH If you require the assistance of auxiliary aids or services CLERK OF THE J ABOVE COURT to participate in court because of a disability, immediately call BY: �N)G`12 your district ADA coordinator at Deputy Clerk 319-398-3920 Ext. 200. (If you Johnson County Courthouse are hearing impaired, call Relay Iowa City, Iowa 52240 . Iowa TTY at 1-800-735-2942). NOTE : The attorney who is expected to appear for the Defendant should be promptly advised by Defendant of the service of this Notice . ! cr, O G nst -•"". IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTy<.i;-,, w" dam. SANDRA J. CURRIER, EVERETT ) �_y. -- CURRIER, TABITHA RASMUSSEN, ) and KARISSA RASMUSSEN, ) Individually, and SANDRA J. ) CURRIER, as next friend of ) ,' fl el/0 51,30 3 CHRISTIANA RASMUSSEN, ) LAW NO. SHOSHANNA RASMUSSEN, ARIANA ) RASMUSSEN, SETH LEATON, AYLA ) LEATON, RAINA LEATON, and ) �, `o A ELIJH CURRIER, minor children, ) PETITION AT LAW 'r 1 Plaintiffs, ) zTc tv v. ) m CITY OF IOWA CITY, IOWA, ) _ ; ; •• Defendant . ) COME NOW Plaintiffs, Sandra J. Currier, Everett Currier, Tabitha Rasmussen, and Karissa Rasmussen, Individually, and Sandra J Currier, as Next Friend of Christiana Rasmussen, Shoshanna Rasmussen, Ariana Rasmussen, Seth Leaton, Ayla Leaton, Raina Leaton, and Elijah Currier, Minor Children, by and through counsel, Leff, Haupert, Traw & Willman, 222 South Linn Street, Iowa City, Iowa, and for their causes of action against Defendant, City of Iowa City, Iowa, state as follows : FACTUAL ALLEGATIONS COMMON TO ALL DIVISIONS AND COUNTS 1 . Plaintiffs Sandra J. Currier and Everett Currier are and at all times relevant hereto were residents of Johnson County, Iowa. _ CS, G t_ 2 . Plaintiff Sandra J. Currier is the natural mothq-of "' _-Z Christiana Rasmussen, Shoshanna Rasmussen, Ariana Rasmussen; Se . : 4 CD Leaton, Ayla Leaton, Raina Leaton, and Elijah Currier, minx 's`, Chd Tabitha Rasmussen, and Karissa Rasmussen. 3 . Plaintiff Sandra J. Currier is and at all times relevant hereto was married to Plaintiff Everett Currier. 4 . Plaintiffs Tabitha Rasmussen and Karissa Rasmussen are and at all times relevant hereto were residents of Johnson County, Iowa. 5 . Defendant, City of Iowa City, is a municipal corporation organized under the laws of the State of Iowa and is situated in Johnson County, Iowa. 6 . At all times material hereto, Defendant maintained within its boundaries a certain park owned by and/or dedicated to the municipal corporation and generally known as Crandic Park. 7 . Within Crandic Park, Defendant maintained numerous appliances and equipment for the enjoyment and amusement of persons invited to use the park. Among the appliances and equipment were several swings. 8 . On or about June 24, 1994, Plaintiffs Sandra J. Currier, Karissa Rasmussen, and Christiana Rasmussen visited Crandic Park and while there used the swings in the park in their normal and intended manner. 2 OD CD ca :‹� ..v orm Cs_� 9 . As Plaintiff Sandra J. Currier was swinging, the Beat of the swing she was using broke free suddenly and unexpectedly from the chain attaching to the swingset frame, causing Plaintiff Sandra J. Currier to fall through the air and ultimately to the ground, where she landed on her head and neck before coming to rest on her back, all resulting in significant physical injury. DIVISION I . For her cause of action against Defendant, City of Iowa City, Plaintiff Sandra J. Currier, individually, states as follows: Count I - Negligence. 10 . Plaintiff Sandra J. Currier repleads and realleges each and every allegation set forth in paragraph one through paragraph nine of the "Common Allegations" with the same force and effect as if set forth verbatim here. 11 . Plaintiff Sandra J. Currier' s fall and injuries resulted from the negligence of Defendant in one or more of the following particulars: a. in failing to maintain the above-mentioned swing a reasonably safe condition and in good repair in violation of common law and statutory duties; b. in failing to exercise reasonable care to learn of and remedy any defect in the swing; 3 o• - 1 c. in permitting the swing to remain availabl6'` or ttse c: in its unsafe condition; and/or r' U'1 d. in failing to warn Plaintiff Sandra J. Currier of an unreasonable risk of injury to her given that Defendant knew or in the exercise of reasonable care should have known that the risk existed and that Plaintiff Sandra J. Currier would not realize or appreciate the risk. 12 . As a proximate result of Defendant ' s negligence, as set forth above, Plaintiff Sandra J. Currier sustained injuries, including severe and permanent injury to her person, resulting in the following damages : past and future medical expenses; past and future physical and mental pain and suffering; past and future loss of full mind and body; lost earnings; loss of future earning capacity; and loss of enjoyment of life. 13 . Plaintiff Sandra J. Currier' s damages exceed the jurisdictional minimum of this court. WHEREFORE, Plaintiff Sandra J. Currier, Individually, prays that the court enter judgment in her favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate her for the personally injuries sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and 4 y oma, -'n N fm further relief as the court deems just and equitable in the-- (J' -v premises . =art ` r Count II - Negligence - Res Ipsa Loquitur 14 . Plaintiff Sandra J. Currier repleads and realleges each and every allegation set forth in paragraph 10 through paragraph 13 of Division I, Count I of the petition with the same force and effect as if set forth verbatim here. 15 . Defendant, City of Iowa City, had exclusive control and management of the above-mentioned swing, which caused Plaintiff Sandra J. Currier ' s injuries when it broke away without notice. 16 . The injuries and damages suffered by Plaintiff Sandra J. Currier are the types of injuries that in the regular course of events would not have been sustained if Defendant, City of Iowa • City, had exercised reasonable care . WHEREFORE, Plaintiff Sandra J. Currier, Individually, prays that the court enter judgment in her favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate her for the personal injuries sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises. 5 up a+ DIVISION II . r(r -v For his cause of action against Defendant, City of IoW CiTil, Plaintiff Everett Currier states as follows: Count I - Negligence 17 . Plaintiff Everett Currier repleads and realleges each and every allegation set forth in paragraph one through paragraph nine of the "Common Allegations" of the petition with the same force and effect as if set forth verbatim here. 18 . Plaintiff Sandra J. Currier' s fall and injuries resulted from the negligence of Defendant in one or more of the following particulars: a. in failing to maintain the above-mentioned swing in a reasonably safe condition and in good repair in violation of common law and statutory duties; b. in failing to exercise reasonable care to learn of and remedy any defect in the swing; c. in permitting the swing to remain available for use in its unsafe condition; and/or d. in failing to warn Plaintiff Sandra J. Currier of an unreasonable risk of injury to her given that Defendant knew or in the exercise of reasonable care should have known that the risk existed and 6 up va y 1' .a that Plaintiff Sandra J. Currier would not meal ie or appreciate the risk. Y ctt 19 . As a proximate result of Defendant ' s negligence, as set forth above, Plaintiff Everett Currier sustained the following damages: past and future loss of Sandra J. Currier' s services; past and future loss of Sandra J . Currier' s consortium, including company, cooperation, affection, her aid in every aspect of the marital relationship, general usefulness, industry, and attention within the home and family, services, society, and companionship. 20 . The damages of Plaintiff Everett Currier damages exceed the jurisdictional minimum of this court . WHEREFORE, Plaintiff Everett Currier, Individually, prays that the court enter judgment in his favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate him for his damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises. Count II - Negligence - Res Ipsa Loquitur 21. Plaintiff Everett Currier repleads and realleges each and every allegation set forth in paragraph 17 through paragraph 20 of Division II, Count II of the petition with the same force and effect as if set forth verbatim here. 7 0, O x- a N - n 22 . Defendant, City of Iowa City, had exclusive contm4 arty management of the above-mentioned swing, which caused Plaintiff Sandra J. Currier ' s injuries when it broke away without notice. 23 . The injuries and damages suffered by Plaintiff Sandra J. Currier are the types of injuries that in the regular course of events would not have been sustained if Defendant, City of Iowa City, had exercised reasonable care. WHEREFORE, Plaintiff Everett Currier, Individually, prays that the court enter judgment in his favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate him for his damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises. DIVISION III For her cause of action against Defendant, City of Iowa City, Plaintiff Sandra J. Currier, as Next Friend of Christiana Rasmussen, Shoshanna Rasmussen, Ariana Rasmussen, Seth Leaton, Ayla Leaton, Raina Leaton, and Elijah Currier, minor children (hereinafter "the minor children" ) , states as follows: 8 .A rn C") Ul ri Count I - Negligence. um 24 . Plaintiff Sandra J. Currier, as next friend of the minor children, repleads and realleges each and every allegation set forth in paragraph one through paragraph nine of the "Common Allegations" with the same force and effect as if set forth verbatim here. 25 . Plaintiff Sandra J. Currier' s fall and injuries resulted from the negligence of Defendant in one or more of the following particulars: a. in failing to maintain the above-mentioned swing in a reasonably safe condition and in good repair in violation of common law and statutory duties; b. in failing to exercise reasonable care to learn of and remedy any defect in the swing; c. in permitting the swing to remain available for use • in its unsafe condition; and/or d. in failing to warn Plaintiff Sandra J. Currier of an unreasonable risk of injury to her given that Defendant knew or in the exercise of reasonable care should have known that the risk existed and that Plaintiff Sandra J. Currier would not realize or appreciate the risk. 26 . As a proximate result of Defendant ' s negligence, as set forth above, the minor children sustained the following damages: 9 Lo . rn past and future loss of Sandra J. Currier ' s services; paste nd- future loss of Sandra J. Currier ' s consortium, including cdmpan ' companionship, comfort, guidance, affection, her aid in every aspect of the parental relationship, general usefulness, industry, and attention within the family. 27 . The damages of the minor children exceed the jurisdictional minimum of this court . WHEREFORE, Plaintiff Sandra J. Currier, as next friend of the minor children, prays that the court enter judgment in her favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate her, as Next Friend of the minor children, for the damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises. Count II- Negligence - Res Ipsa Loquitur 28 . Plaintiff Sandra J. Currier, as Next Friend of the minor children, repleads and realleges each and every allegation set forth in paragraph 24 through paragraph 27 of Division III, Count I of the petition with the same force and effect as if set forth verbatim here. 10 ar fr - N GJl 29 . Defendant, City of Iowa City, had exclusive control aad 'c r - ..F management of the above-mentioned swing, which caused Plai Ciffr Sandra J. Currier ' s injuries when it broke away without not ce.a' 30 . The injuries and damages suffered by Plaintiff Sandra J. Currier are the types of injuries that in the regular course of events would not have been sustained if Defendant, City of Iowa City, had exercised reasonable care. WHEREFORE, Plaintiff Sandra J. Currier, as next friend of the minor children, prays that the court enter judgment in her favor and against Defendant, City of Iowa City, for an amount reasonably calculated to compensate her as next friend of the minor children, for the damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises . • DIVISION IV. For their causes of action against Defendant , City of Iowa City, Plaintiffs Tabitha Rasmussen and Karissa Rasmussen state as follows: Count I - Negligence. 31. Plaintiffs Tabitha Rasmussen and Karissa Rasmussen, replead and reallege each and every allegation set forth in 11 aA an Gomm c a%- x —v paragraph one through paragraph nine of the "Common Allegat)iitins= with the same force and effect as if set forth verbatim here. a► 32 . Plaintiff Sandra J. Currier' s fall and injuries resulted from the negligence of Defendant in one or more of the following particulars: a. in failing to maintain the above-mentioned swing in a reasonably safe condition and in good repair in violation of common law and statutory duties; b. in failing to exercise reasonable care to learn of and remedy any defect in the swing; c . in permitting the swing to remain available for use in its unsafe condition; and/or d. in failing to warn Plaintiff Sandra J. Currier of an unreasonable risk of injury to her given that Defendant knew or in the exercise of reasonable care should have known that the risk existed and that Plaintiff Sandra J. Currier would not realize or appreciate the risk. 33 . As a proximate result of Defendant ' s negligence, as set forth above, Plaintiffs Tabitha Rasmussen and Karissa Rasmussen sustained the following damages : past and future loss of Sandra J. Currier' s services; past and future loss of Sandra J. Currier ' s consortium, including company, companionship, comfort, guidance, affection, her aid in every aspect of the parental 12 .A rn c= m71 • o c_ rc`ji 9 relationship, general usefulness, industry, and attentioncgrEthipi the family. 34 . The damages of Plaintiffs Tabitha Rasmussen and Karissa Rasmussen exceed the jurisdictional minimum of this court . WHEREFORE, Plaintiffs Tabitha Rasmussen and Karissa Rasmussen pray that the court enter judgment in their favor and against Defendant , City of Iowa City, for an amount reasonably calculated to compensate them for their damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises . Count II . - Negligence - Res Ipsa Loquitur 35 . Plaintiffs Tabitha Rasmussen and Karissa Rasmussen replead and reallege each and every allegation set forth in paragraph 31 through paragraph 34 of Division IV, Count I of the petition with the same force and effect as if set forth verbatim here. 36 . Defendant , City of Iowa City, had exclusive control and management of the above-mentioned swing, which caused Plaintiff Sandra J. Currier' s injuries when it broke away without notice. 37 . The injuries and damages suffered by Plaintiff Sandra J. Currier are the types of injuries that in the regular course of 13 100 CD Lel -71 7 - iv events would not have been sustained if Defendant, City of -Iow ' City, had exercised reasonable care. 7:c.'J,_ WHEREFORE, Plaintiff Sandra J. Currier, as Next Friel:of floe minor children, prays that the court enter judgment in her favor and against Defendant , City of Iowa City, for an amount reasonably calculated to compensate her as Next Friend of the minor children, for the damages sustained, interest on all damages as provided by law, the costs of this action, interest on the judgement as provided by law, and for such other and further relief as the court deems just and equitable in the premises. L,,24)()_42 1 I I UL) 21 . 21-051- Raall B . Willman, 010008098 1p en E. allard, 0 011 91 • LEFF, HAUPERT & TRAW 222 S . Linn St . , P.O. Box 2447 Iowa City, Iowa 52244-2447 Phone: (319) 338-7551 Fax: (319) 338-6902 ATTORNEYS FOR CLAIMANT /sh 14 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY • rn SANDRA J. CURRIER, EVERETT ) © si it CURRIER, TABITHA RASMUSSEN, ) and KARISSA RASMUSSEN, ) C) U1 Individually, and SANDRA J. ) - r CURRIER, as Next Friend of ) :(' CHRISTIANA RASMUSSEN, ) LAW NO. LACV057303 SHOSHANNA RASMUSSEN, ARIANA ) `_ '' RASMUSSEN, SETH LEATON, AYLAS ) 'y (Il LEATON, RAINA LEATON, and ) ELIJA CURRIER, Minor Children, ) ACCEPTANCE OF SERVICE Plaintiffs, ) v. ) CITY OF IOWA CITY, IOWA, ) ) Defendant . ) The undersigned, City of Iowa City, Iowa, the Defendant named in the foregoing matter and in the attached Original Notice, hereby accepts due, legal, and timely service of said Original Notice, Petition and Jury Demand and further hereby acknowledges receipt of a copy of said Original Notice, with a copy of the Petition and Jury Demand attached thereto. DATED at Iowa City, Iowa, in Johnson County, Iowa, this day of lc,_ , 1996. CITY OF IOWA CITY, IOWA, Defendant BY: lLa-tet.�c.2 e2 City Clerk /jmm END OF CASE FILE THE IOWA STATE BAR ASSOCIATION Charles A.Meardon FOR THE LEGAL EFFECT OF THE USE OF Offls!aI•Form No. 301 'SBA/09771 Meardon, Sueppel, Downer&Hayes P.L.C. THIS FORM,CONSULT YOUR LAWYER l �TA7B o' o} " THE IOWA DISTRICT COURT •! �0C I M1t JOHNSON COUNTY DORIS J. FINN and MICHAEL LAW RICHARD FINN, SSN: 201-14-0778 ❑ 1..-11' EQUITY No. Plaintiff(s), VS. CITY OF IOWA CITY, ORIGINAL NOTICE Defendant(s). CrN c11 fir_ 7431 `i Com) ! --4` -p b li - ssr TO THE ABOVE-NAMED DEFENDANT(S): _-- You are hereby notified that there is now on file in the office of the clerk of the above court a petition in the above-entitled action, a copy of which petition is attached hereto. The name(s) and addressles) of the plaintiff's(s') attorney(s) is (are) Robert N. Downer and Charles A. Meardon of MEARDON, SUEPPEL, DOWNER & HAYES P.L.C. , 122 South Linn Street, Iowa City, IA 52240 You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City , Iowa, judgment by default will be rendered against you for the relief demanded in the petition. EDWARD F. STEINBRECH I i youErequire the assistance of auxiliary aids services to participate in court because of a )(1/1— i sability, immediately call your district ADA ( 1641711C1' c'ordinator at 319-398-3920. Ext. 200 (If ,, CLERK OF THE ABOVE COURT a� e hearing impaired, call Relay Iowa TTY • Johnson _ County Courthouse 11800-735-2942). Tnwa City , Iowa 52240 NOTE:The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. • I The Iowa State Bar Association 301 ORIGINAL NOTICE FOR PERSONAL SERVICE CALFS Rebase 3.0 0/94 Revised January, 1991 • m IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY rn DORIS J. FINN, and ) LAW NO. L)� � 3 -o MICHAEL RICHARD FINN, ) r SSN: 201-14-0778 ) PETITION AT LAW '? v Plaintiffs, ) o CITY OF IOWA CITY, ) ! `'\\ Defendant. ) • Plaintiffs state: 1 . Plaintiffs are residents of Iowa City, Johnson County, and owners of real estate with a house thereon located at 512 River Street, Iowa City, Iowa. 2 . Defendant is a municipal corporation duly existing under the laws of the State of Iowa. 3 . Defendant owns and operates a municipal sewage disposal system for disposal and treatment of sewage within the municipal limits of Defendant. 4 . During the spring of 1995, Plaintiffs noticed that the drains and toilets in their residence were draining slowly. After conducting an investigation, Plaintiffs learned that a "Y" joint, which attached directly to Defendant ' s main sewer pipe, disintegrated, causing Plaintiffs ' sewer services to be adversely affected. The disintegrating "Y" joint was entirely within Defendant ' s right of way, under Defendant ' s supervision and control , and, as previously stated, was directly attached to Defendants main sewer line. 5 . On May 25 , 1995 Plaintiffs hired Maxwell Construction Company to restore Plaintiffs ' sewer services. Maxwell Construction Company was required to excavate the sewer line attached to Plaintiffs ' residence and replace the "Y" joint to restore said services. 6. Defendant was negligent in failing to check and properly maintain its sewer system. 7 . As a direct and proximate result, Plaintiffs have been damaged. 8 . Plaintiffs spent $12 , 352 . 69 to repair the sewer which was the responsibility of Defendant. WHEREFORE, Plaintiff asks for judgment in the amount of $12 , 352 . 69, plus lawful interest and the costs of this action. MEARDON, SUEPPEL, DOWNER & HAYES P. L. C. BY / .1 ' -t� -obe rt . Downer 000001324 B , 1 i( / ' � / / 1� Y C arles A. Meardo J00009771 122 South Linn Street Iowa City, IA 52240 (319) 338-9222 ATTORNEYS FOR PLAINTIFFS V/401 `A.113 4101 )p.43-12 111 od :C 1dd 01 dJS 9G END OF CASE FILE I THF IOWA$'ATE BAR ASSOCIATION Margaret T.Larson FOR THE LEGAL EFFECT OF THE USE OF 1 ISBA#03009 Official Farm No. 301 Meardon, Sueppel, Downer&Hayes P.L.C. THIS FORM.CONSULT YOUR LAWYER S T"rc THE IOWA DISTRICT COURT 1 O= oCr,„ JOHNSON COUNTY JUDY ANN HOPPING AND LAW ❑ STEVEN D. HOPPING, 5-7032,WIFE AND HUSBAND EQUITY ❑ No. Plaintiff(s), VS. CITY OF IOWA CITY, IOWA AND COLLEGE BLOCK PARTNERS D/B/A ORIGINAL NOTICE BUSHNELL' S TURTLE Defendant(s). to O cr' ...4 co i p o — se.� TO THE ABOVE-NAMED DEFENDANT(S): — y� You are hereby notified that there is now on file in the office of the clerk of thtobove-dourt a petition in the above-entitled action, a copy of which petition is attached hereto. The narrets) andraddress(es) of OD the plaintiff's(s') attorney(s) is (are) Margaret T. Lainson, 122 S . Linn Street, Iowa City, Iowa 52240 You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City , Iowa, judgment by default will be rendered against you for the relief demanded in the petition. kuiiiiiilli i. Si If lyr�eLyire the assistance of auxiliary aids b�..,wY ar. oi onservices to participate in court because of a A /;�w�N�rt� �3 ' ►u.{ di ability, immediately call your district ADA 5 c 1 rdinator at 319-398-3920. Ext. 200 (If yOLtLERK OF THE ABOVE COURT ar hearing impaired, call Relay Iowa TTY at 1 00-735-2942). Johnson County Courthouse 1 Iowa City , Iowa 52240 NOTE: The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. The Iowa State Bar Association 301 ORIGINAL NOTICE FOR PERSONAL SERVICE L CALFS Release 3.0 6;94 Revised January, 1991 IN THE DISTRICT COURT OF IOWA IN AND FOR JOHNSON CQyNTY L, ca JUDY ANN HOPPING AND ) STEVEN D. HOPPING, ) WIFE AND HUSBAND, ) LAW NO. 57°322 :<.. , PLAINTIFFS, ) ) • vs. ) ) CITY OF IOWA CITY, IOWA AND ) PETITION AT LAW COLLEGE BLOCK PARTNERS D/B/A ) � = rl BUSHNELL'S TURTLE ) CZ) CA -- N DEFENDANTS. ) **************************** I 1 rj - �^^. PREAMBLE Plaintiffs state: 1. Plaintiffs Judy Ann Hopping and Steven D. Hopping are wife and husband and are currently residents of Iowa City, Johnson County, Iowa. 2 . Defendant City of Iowa City is a municipal corporation established under the laws of the State of Iowa. 3 . At all times relevant hereto College Block Partners were a partnership organized under the laws of the State of Iowa doing business in Iowa City, Johnson County, Iowa under the name of Bushnell 's Turtle. 4 . On or about February 13 , 1994 , Plaintiff Judy Ann Hopping was walking on the College street portion of the pedestrian plaza mall located in downtown Iowa City. In an area of the pedestrian plaza mall which was directly in front of Bushnell 's Turtle restaurant, Plaintiff Judy Ann Hopping slipped and fell on ice which had accumulated on the sidewalk area, causing her injury and damages as hereinafter set forth. DIVISION I Plaintiff Judy Ann Hopping states: 5. She realleges paragraphs #1 through #4 of the Preamble. 6. The proximate cause of Plaintiff Judy Ann Hopping's fall and resulting injuries and damages was the negligence of Defendant City of Iowa City, Iowa. 7 . As a result of Defendant City of Iowa City, Iowa's negligence, Plaintiff Judy Ann Hopping sustained serious and permanent injury, has incurred and continues to incur medical expenses, has incurred lost of income and has endured and continues to endure severe pain and suffering. In addition, Plaintiff Judy Hopping has sustained property damages to the clothes she was wearing at that time. WHEREFORE, Plaintiff Judy Ann Hopping asks for judgment against Defendant City of Iowa City, Iowa in an amount sufficient to cover her injuries, damages and the costs of this action. DIVISION II 8. Plaintiff Judy Ann Hopping states she realleges paragraphs #1 through #4 of the Preamble. 9. The proximate cause of Plaintiff Judy Ann Hopping's fall and resulting injuries and damages was the negligence of the defendant College Block Partners d/b/a Bushnell's Turtle. 10. As a result of Defendant College Block Partners d/b/a Bushnell's Turtle's negligence, Plaintiff Judy Ann Hopping sustained serious and permanent injury, has incurred and c9inue0 .;) •�. 2 • to incur medical expenses, has incurred lost of income and has endured and continues to endure severe pain and suffering. In addition, Plaintiff Judy Hopping has sustained property damages to the clothes she was wearing at that time. WHEREFORE, Plaintiff Judy Ann Hopping may ask for judgment against Defendant College Block Partners d/b/a Bushnell's Turtle in an amount sufficient to cover her injuries and damages for the costs of this action. DIVISION III Plaintiff Steven D. Hopping states : 11. He realleges paragraphs #1 through #4 of the Preamble. 12 . The proximate cause of Plaintiff Judy Ann Hopping's fall and resulting injuries and damages was the negligence of the Defendant City of Iowa City, Iowa. 13 . As a result of Defendant Iowa City, Iowa's negligence, Plaintiff Steven D. Hopping has sustained the loss of Plaintiff Judy Ann Hopping's care, comfort, support and consortium. WHEREFORE, Plaintiff Steven D. Hopping asks the Court to enter judgment against the Defendant City of Iowa City, Iowa in an amount sufficient to compensate him for the damages sustained herein and for the costs of this action. t"')-`' Q 6� 3 :: " -t) ' O w co • A DIVISION IV Plaintiff Gerald J. Hopping states: 1. He realleges paragraphs #1 through #4 of the Preamble. 2 . The proximate cause of Plaintiff Judy Ann Hopping's fall and resulting injuries and damages was the negligence of the Defendant College Block Partners d/b/a Bushnell's Turtle. 3 . As a result of College Block Partner's negligence, Plaintiff Gerald J. Hopping has sustained the loss of Plaintiff Judy Ann Hopping's care, comfort and consortium. WHEREFORE, Plaintiff Gerald J. Hopping asks the Court to enter judgment against the Defendant College Block Partners d/b/a Bushnell 's Turtle in an amount sufficient to compensate him for the damages sustained herein and for the costs of this action. MEARDON, SUEPPEL, DOWNER & HAYES, P. L. C. By: i I DLL M.rgaret r Lainson •04003009 122 S. Li Street Iowa City A 52240 319-338-9222 ATTORNEYS FOR PLAINTIFFS 4 $S 2 _ END OF CASE FILE • t • 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, I.D. No. 42-0335350, Equity N° EQCU057341 Plaintiff, vs. ORGINAL NOTICE ANTHONY W. WILSON, CONNIE K. WILSON, THE CITY OF IOWA CITY and ANY PARTIES IN POSSESSION, and t`.., UNKNOWN CLAIMANTS TO: LOT 10c_ BLOCK 6 IN SUNNYSIDE ADDITION ' + --,-t C. .sw TO IOWA CITY, IOWA, ACCORDING -- N w p" TO THE RECORDED PLAT THEREOF. �r,, Defendants. o_ To the above named Defendants: co You are hereby notified that there is now on file in the office of the clerk of the above court a petition in the above-entitled action, a copy of which petition is attached hereto. The Plaintiff's attorney is Catherine A. Pugh of Stein, Russell & Pugh, L.L.P. whose address is P.O. Box 2416, Iowa City, Iowa 52244. You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City, Iowa,judgment by default will EDWARD F. STElhibtitt;H be rendered against you for the relief demanded in the petition. /LL 4JJ./Ld I cM,c Clerk of e above Court Johnson County Courthouse Iowa City, Iowa Note: The attorney who is expected to represent the Defendant should be promptly advised by Defendant of the service of this notice. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 319-398-3920 Ext. 200. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942. IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, I.D. No. 42-0335350, Equity N° EQCU057341 Plaintiff, vs. ANTHONY W. WILSON, CONNIE K. AMENDED AMENDATIOi c WILSON, THE CITY OF IOWA CITY, s and ANY PARTIES IN POSSESSION and �=r- UNKNOWN CLAIMANTS TO: LOT 10 G' ry r-- IN BLOCK 6 IN SUNNYSIDE ADDITION TO IOWA CITY, IOWA, ACCORDING T if+ TO THE RECORDED PLAT THEREOF. .7‹ 9.o g c c, Tr,— Ca Defendants. COMES NOW the Plaintiff, by and through the undersigned attorneys and amends the caption in this matter to show the City of Iowa City as a party Defendant. Herafter, the caption should be as is denominated above. STEIN, RUSSELL & PUGH, L.L.P. I, . J S--in A.I.N. 000005283 ATTORNEYS FOR IOWA STAT BANK & TRUST COMPANY CD -- STEIN, RUSSELL �. & PUGH, L.L.P. N AcreC) 1/40 I ATTORNEYS ENGLERT BLDG..P.O.BOX 2416 `'" O s �( IOWA CITY.IOWA 52244 — I"l--. •.=rac$ FAX 0N 319-391-6409 1 -. TELEPHONE ~' ~ 319-351-5610 CO RECEIVED JUL 2 4 1996 • . IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, I.D. No. 42-0335350, Equity N° EQCU057341 Plaintiff, vs. ANTHONY W. WILSON, CONNIE K. AMENDING OF CAP,TIOV, WILSON and ANY PARTIES IN POSSESSION and UNKNOWN CLAIMANTS TO: LOT 10 IN BLOCK 6 IN SUNNYSIDE ADDITION TO IOWA _ i t CITY, IOWA, ACCORDING TO RECORDED PLAT THEREOF. 17. l- _ Defendants. COMES NOW the Plaintiff, by and through the undersigned attorneys and amends the caption in this matter to remove the City of Iowa City as a Plaintiff. Herafter, the caption should be as is denominated above. STEIN, RUSSELL & PUGH, L.L.P. /1 L,rry ten A.I.N. 000005283 Q' ,.7 �_ . r . , ATTORNEYS FOR IOWA SrTATE2 A141c-& TRUST COMPANY STEIN, RUSSELL & PUGH, L.L.P. G-- ATTORNEYS ) ENGLERT BLDG..P.O.BOX 2416 rr IOWA CITY,IOWA 52244 CD FAX 319-351-6409 TELEPHONE 319-351.5910 . • "v t Lluz 22 IN THE IOWA DISTRICT COURT IN AND FOR JOHNS II,COZI ;Y.,, C /i /7 till/Ifs t 111►'I;rj�'.''1f,"y 1, IOWA STATE BANK & TRUST `���'�'l 1,' /4,1 ' COMPANY, I.D. No. 42-0335350, and the CITY OF IOWA CITY, Equity N° E C 170 S.73�1 Plaintiff, vs. PETITION FOR MORTGAGE FORECLOSURE ANTHONY W. WILSON, CONNIE K. WILSON, THE CITY OF IOWA CITY, and ANY PARTIES IN POSSESSION, and _ Cr UNKNOWN CLAIMANTS TO: LOT 10 + IN BLOCK 6 IN SUNNYSIDE ADDITION TO IOWA CITY, IOWA, ACCORDING TO THE RECORDED PLAT THEREOF. ; 1-, •• Defendants. NOTICE Io THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (or SIX MONTHS if the petition includes a waiver of deficiency judgment) FROM.ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. COMES NOW the above named Plaintiff, Iowa State Bank & Trust Company, by and through the undersigned attorneys, and for a cause of action against the Defendants, states as STEIN, RUSSELL & PUGH, L.L.P. ATTORNEYS follows: ENGLERT BLDG..P.O.BOX 241e IOWA CITY.IOWA 52244 FAX 1 319.331-6409 TELEPHONE 319-351-3610 t ` 1. The Plaintiff is an Iowa Banking Corporation with its principal place of business in Iowa City, Johnson County, State of Iowa. 2. The Defendant Anthony W. Wilson is a resident of Johnson County, State of Iowa. 3. The Defendant Connie K. Wilson is a resident of Johnson County, State of Iowa. 4. On or about June 8, 1995, the Defendants Anthony W. Wilson and Connie K. Wilson, for value received, did make, execute and deliver to the Plaintiff a written promissory note in the original amount of$51,000.00 with interest as provided therein. A copy of that note is marked Exhibit "A", attached hereto and incorporated here by reference. 5. The Plaintiff is the current holder of the note referred to as Exhibit "A". 6. As security for the promissory note referred to in Paragraph 4 above, the Defendants Anthony W. Wilson and Connie K. Wilson made, executed, and delivered to the Plaintiff a written mortgage upon the following described real estate situated in Johnson County, Iowa to wit: Lot 10 in Block 6 in Sunnyside Addition to Iowa City, Iowa, according to the recorded plat therof. A copy of that mortgage is marked Exhibit "B", attached hereto and incorporated here by reference. 7. The mortgage represented by Exhibit "B" and referred to above was recorded on June 16, 1995, in Book 1917, at Page 133, records of the Johnson County Recorder. 8. The note referred to in Exhibit "A" is in default by failure of the Defendants to STEIN, RUSSELL make payments due on February 1, 1996, and thereafter. ©r,, & PUGH, L.L.P. ATTORNEYS C)— N ENGLERT BLDG..P.O.BOX 2416 . --7t 3 IOWA CITY.IOWA 52244 FAX ."1:1yw�jn�)1 2 � � a i 319-351.6409 Q + TELEPHONE 319-351-5610 c 9. The Defendants Anthony W. Wilson and Connie K. Wilson have been served with all cure notices required by the Iowa Code and all notices required by the note and mortgage. 10. As a result of the Defendants Anthony W. Wilson's and Connie K. Wilson's default the Plaintiff, pursuant to the terms of the note, chooses to accelerate the principal and interest due. 11. As a result of the above, as of June 27, 1996, the Defendants Anthony W. Wilson and Connie K. Wilson were indebted to the Plaintiff in the amount of$50,506.13 principal plus interest in the amount of $1,612.72 and late charges of $281.50 for a total amount due $52,400.35 with interest continuing to accrue at the rate of$12.7994 per day (9.2% per annum) from June 28, 1995, until paid. 12. The real estate mortgage attached as Exhibit"B" provides for attorneys fees in case of suit thereon. An affidavit of attorneys fees is marked Exhibit "C", attached hereto, and incorporated here by reference. 13. Said mortgage further provides monthly payments made in escrow to be applied to taxes and insurance as those payments become due. The Plaintiff is obligated to pay insurance premiums and taxes as they become due. In the event Plaintiff is require to pay escrow advances to cover insurance premiums or taxes on real property which is the subject of this suit, Plaintiff prays that it will have judgment against.the Defendants Anthony W. Wilson and Connie K. Wilson for any such advances and that those payments become a lien upon the proorty pursuant to the mortgage. ry STEIN, RUSSELL tL? & PUGH, L.L.P. 14. The mortgage referred to as Exhibit "B" provides that upon.4ti1t'TJ the mgrtgagee s ATTORNEYS "._ ! t ENGLERT BLDG..P.O.BOX 2416 C ' f IOWA CITY.IOWA 52244 _ Iv FAX 319-351.6409 3 CO TELEPHONE 319-351-51510 may procure a continuation of an abstract of title for the premises and add said costs to the mortgage debt. The Plaintiff requests a judgment for any abstracting fees generated by the filing of this petition. 15. Pursuant to §654.21, The Code, the Plaintiff hereby waives any deficiency judgment against the Defendants so that the property may be sold without redemption. 16. The Plaintiff has chosen to proceed under §654.20, The Code. Therefore, if the Defendants Anthony W. Wilson and Connie K. Wilson do not file a written demand to delay the sale under §654.21, The Code, the Plaintiff prays that a sale be held promptly after entry of judgment and that all rights of redemption be extinguished. 17. The Plaintiff states that the real property mortgaged by the Defendants and the subject of this lawsuit is not used for an agricultural purpose as defined in §535.13, The Code. 18. There may be parties in possession or unknown claimants to the subject property claiming to have an interest in or title to the subject. 19. Attached Exhibit "D" is a Resolution No. 95-25 by the City Council by the City of Iowa City authorizing the Mayor to execute and the City Clerk to attest a subordination agreement between the City of Iowa City and the Iowa State Bank & Trust Company for the subject property. The City of Iowa City had made a loan to the Defendants herein in the amount of$37,000.00 on October 29, 1993. The conditional occupancy loan was recorded on April 8, 1994, in Book 1729 at Pages 226 to 230 in the Johnson County Recorder's Office. 20. The resolution subordinates the rehabilitation lien held by ae Citof Iowa City STEIN, RUSSELL "^ a PUGH, L.L.P. to the mortgage held by Iowa State Bank & Trust Company. Exhibit "E&a thcbejl iso olution ATTORNEYS ENGLERT BLDG.,P.O.BOX 2416 IOWA CITY,IOWA 52244 P FAX O w+7 319-351-6409 TELEPHONE Cs 319-351-5610 number 95-115 by the City Council of the City of Iowa City authorizing the Mayor to execute and the City Clerk to attest a subordination agreement between the City of Iowa City and the Iowa State Bank & Trust Company for the subject property. On May 8, 1992, the Defendants executed a promissory note in the amount of $2,250 that was recorded June 9, 1992, in Book 1383, pages 308 to 312. The resolution subordinates that rehabilitation lien held by the City of Iowa City to the mortgage held by the Iowa State Bank & Trust Company. 21. The Plaintiff states that any rights of any of the Defendants in this case, including parties in possession or unknown Defendants, asserting or having liens against the above described property are junior and inferior to the rights of the Plaintiff and the rights of the Plaintiff are senior and superior to any rights of any of the Defendants claiming liens against the above described property. WHEREFORE, the Plaintiff prays as follows: 1. That the Plaintiff have a judgment against the Defendants Anthony W. Wilson and Connie K. Wilson in the amount of$52,400.35 plus interest at a rate of$12.799 per day (9.25% per annum) from June 27, 1996, until paid and for the costs of this action, including a reasonable attorneys fee, abstract continuation costs, and any additional amount advanced for taxes or insurance. 2. That the mortgage referred to in Exhibit "B" and the judgment herein be established and confirmed as a first and paramount lien upon the real estate 45scribed in Z^1 paragraph number six above, senior and superior to the right, title, interest, heti or sftims of each STEIN, RUSSELL c-, & PUGH, L.L.P. and every defendant to this cause of action, and that said mortgage be fpreclo €d against all ATTORNEYS t � y ENGLERT BLDG..P.O.BOX 2416 P7 IOWA CITY,IOWA 52244 FAX a 319-331.6409 5 TELEPHONE _ 319.351-5610 . defendants who shall be forever barred and estopped from having any right, title, or interest in said real estate except for statutory rights of redemption, if any, from the sheriffs sale as are given by law. 3. That a special execution for the sale of the real estate described in paragraph number six, above, be issued and a sale be held promptly after entry of judgment pursuant to §654.22, The Code. If the Defendants Anthony W. Wilson and Connie K. Wilson file a demand for delay of sale, then the Plaintiff prays that the Court act pursuant to §654.21, The Code, and direct that the sale be held promptly after the expiration of six months from the date of judgment. That at the sale contemplated, a Sheriffs Deed be issued to the purchaser conveying the absolute title thereto against all Defendants and all persons claiming by, through, or under any of them and that a writ of possession be issued forthwith to put the purchaser in immediate possession of the entire premises, and that all rights of redemption be extinguished. 4. That the Plaintiff have such other and further relief as may be equitable in the premises. Respectfully submitted, STEIN, RUSSELL & PUGH, L.L.P. y .tein A.I.N. 000005283 L Ln Catherine A. Pugh A.I.N.00:1;1448E 0.71STEIN, RUSSELL ATTORNEYS FOR PLAINT4F ry a & PUGH, L.L.P. ATTORNEYS -<.I - -0 4.I ENGLERT BLDG..P.O.BOX 24161-r1-"'- IOWA CITY,IOWA 52244 © 1- N FAX 6 310.351-6409 TELEPHONE 319.351-5610 • STATE OF IOWA ) )SS: COUNTY OF JOHNSON ) I, Jerry L. Vanni, being first duly sworn on oath do depose and state that I am a Vice- President of the Iowa State Bank & Trust Company, Plaintiff herein, and that I have read the above and foregoing instrument and know the contents thereof, and the statements therein contained are true and correct to the best of my knowledge and belief. erPy'�Vanni, Vice-President Iowa State Bank & Trust Company 97,4,1 i9 me this dayof I ee ef--l991. Subscribed and sworn to before � , N�tary 'ubl' , State of Iowa OW 4, L.JAY STEIN MY COMMISSION EXPIRES * Jan.15,MT �Iw► F ' r t._ ..v ; r' O— STEIN, RUSSELL & PUGH, L.L.P. ATTORNEYS ENGLERT BLDG..P.O.BOX 2416 IOWA CITY,IOWA 52244 FAX 7 319-351-6409 TELEPHONE 319-351-5610 NO I E r ruuu,,,, J•, Anthony W. Wilson • bt&rinie K. Wilson 1521 Broadway Street Iowa City, IA 52240 Iowa City . Iowa June 8, 1995 (City) Patel foetal 1521 Broadway Street, Iowa City, IA 52240 [Properly Addresq 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $ 51,000.00 (this amount Is called "principal"), plus Interest, to the order of the Lender. The Lender Is Iowa State Bank & Trust Company . I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who Is entitled to receive payments under this Note Is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 9.250 %. Interest will be charged beginning on June 8, 1995 of thisThe Interest rate required by this Section 2 Is the rate I will pay both before and alter any default described in Section 6(B) Note. 3. PAYMENTS (A) Scheduled Payments t.0 I will pay principal and Interest by making payments when scheduled: CD Innl4 'T ® I will make 35 payments of $ 563.08 each on the 1st of each month �'�9i } on August 1, 1995 • n-C ❑ I will make payments as follows: *-1'...--.) : fir , ' _ Ofo i CO ® In addition to the payments described above, I will pay a "balloon payment" of$ 44,542.44 on July 1st 1998 . The Note Holder will deliver or mail to me notice prior to maturity that the balloon payment Is due. This n�ollce n will slate the balloon payment amount and the date that It is due. f. 4,.'. (B) Maturity Date and Place of Payments I will make these payments as scheduled until I have paid all of the principal and interest and any other charges described below that I may owe.under this Note. My scheduled payments will be applied to Interest before principal. If, on July 1, 1998 I still owe amounts under this Note, I will pay those amounts in full on that date, which Is called the "maturity date." I will make my scheduled payments al 102 South Clinton St. Iowa City, Iowa 52240 or at a dillerent place II required by the Note Holder. 4. BORROWER'S RIGHT TO amount • of tinct al only Is known rag a I have the right to make payments of principal at any time before They are due. A paymentP Pt l "prepayment."When I make a prepayment, I will tell the Note Holder In writing that I am doing so. I may)make reduce the premount not or po ial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments that I owe under this Note. II I make a partial prepayment, there will be no changes in the due dale or in the amount of my mdit hljS:, payment• unless the Note Holder agrees In writing to those changes. F:' 1. :1% 5. LOAN CHARGES II a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the Interest or otheriIeari charges collected or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall•bg reduced by the amount necessary to reduce the charge to the permitted limit: and (li) any sums already collected from me which exceeded permitted limits will be re- funded to me. The Note Holder may choose to make this refund by reducing the principal Howe • under this Note or by making a direct payment to me. II a refund reduces principal, the reduction will be treated as a partial prepayriiehl. 6. BORROWER'S FAILURE TO PAY AS REQUIRED ' • (A) Late Charge for Overdue Payments calendar da s alter II the Note Holder has not received the lull amount of any scheduled payment by the end of 15 ' date It is due, I will pay a late charge to the Note Holder.The amount of the charge will be 5.000% of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default II I do not pay the lull amount of each scheduled payment on the dale it Is due, I will be in default. S • (C) Notice of Default �� II I am In default, the re Holdermaymedia el a wrihelten notice full amounte1ling me of prncipalalIf I whichohasl pay the not beenopaidUeandoall tthe InteestrnThhat I • the Note Holder may require to pay Y owe on that amount. That date must be at least 30 days alter the date on which the notice Is delivered or mailed to me. (D) No Waiver By Note Holder • Even if, at a lime when I am in default, the Note Holder does not require me to pay immediately in lull as described above, thA'Note ,Holder will still have the right to do so it I am In default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay Immediately In full as described above, the Note Holder will have the right to be paid back by me for all of Its costs and expenses in enforcing this Hole to the extent not prohibited by applicable law. Those expenses Include, . for example, reasonable attorneys' lees. EXHIBIT "A" PAGE 1 OF 2 .....�,.,,,nnncr rnrcn RATE NOTE (MULTISTATE) • 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering It or by mailing it by first class mail to me al the Property Address above or at a dillerent address If I give the Note Holder a notice of • my dillerent address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(B) on page one of this Note or at a dillerent address II I am given a notice of that dillerent address. 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE • If more than one person signs this Note, each person is fully and personally obligated to keep all el the promises made In this Note, Including the promise to pay the lull amount owed. Any person who Is a guarantor, surety or endorser of this Note Is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, Is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person Individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amount due. "Notice of dishonor" means the right to require the • Note Holder to give notice to other persons that amounts due have not been paid. 10. SECURED NOTE In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed,al Trust or Security Deed (the "Security Instrument"), dated the same dale as this Note, protects the Note Holder from possible losses which might result II I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make Immediate payment in lull of all amounts I owe under tills Note. Some of these conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Properly or any interest in it Is sold or transferred (or it a beneficial interest In Borrower Is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, al its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the dale the notice is delivered or mailed within which Borrower muss pay all sums secured by this Security Instrument. II Borrower fails to pay these sums prior to the expiration of this period, Lender may Invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 11. BALLOON PAYMENT DISCLOSURE (Complete the balloon payment notice below it this Note provides for a balloon payment at Section 3(A) on page one of this Note.) THIS LOAN IS PAYABLE IN FULL July 1, 1998 . I MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE, WHICH MAY BE A LARGE PAYMENT. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. I WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT I MAY OWN, OR I WILL HAVE TO FIND A LENDER, WHICH MAY BE THE LENDER I HAVE THIS LOAN WITH, WILLING TO LEND ME THE MONEY. IF I REFINANCE THIS LOAN AT MATURITY, I MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF I OBTAIN REFJNANCING FROM THE SAME • LENDER. kla WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. ' C3 c_ za 1;1-7-7 (g.r- 7: Borrower Anti.' W. Wilson Borrower Connie K. Wilson j (Sear) Borrower (SIGN ORIGINAL ONLY) • EXHIBIT "A" PAGE 2 OF 2 J / I (P/q � ________------- 13)(_.- I91 -3-- P13E [Space Above This Una For Recording Dalai MORTGAGE THIS MORTGAGE ("Security Instrument') Is given on June 8, 1995 ,The mortgagor Is Anthony W. Wilson and Connie K. Wilson ,husband and wife ('Borrower"). This Security Instrument Is given to Iowa State Bank & Trust Company which is organized and existing under the laws of Iowa .and whose address Is 102 South Clinton St. Iowa City, Iowa 52240 ('Lender"). Borrower owes Lender the principal sum of Fifty One Thousand and 00/100 Dollars (U.S. $ 51,000.00 ). This debt is evidenced by Borrower's note dated the same date as this Security instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on July 1, 1998 . This Security instrument secures to the Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with Interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described properly located In Johnson County, Iowa: Lot 10 in Block 6 In Sunnyside Addition to Iowa City, Iowa, according to the recorded plat thereof. C.n C.::: C__ ti! C ";i r �i 1717 _rrr = O%.� ^) which has the address of 1521 Broadway Street, IowaitY.- 1 , y, [wy) r [Street) CO Iowa 52240 ('Property Address'); !. • [Zip Code) TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing Is referred to In this Security Instrument as the 'Property.' BORROWER COVENANTS that Borrower Is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Properly Is unencumbered, except for encumbrances of record. Borrower warrants and :will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. ' THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations' by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and Interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. • 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Leinder on the day. monthly payments are due under the Note, until the Note is paid In full, a sum ("Funds") for: (a) yearly taxes ,and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or. ground rents on the Property, if any; (c) yearly hazard or property Insurance premiums; (d) yearly flood Insurance premiums, if any; (e) yearly mdrtgage Insurance premiums, Ii any; and ([) any sums payable by Borrower to Lender, In accordance with the provisions of paragraph 8. In lieu of the payment of mortgage Insurance premiums. These Items are called 'Escrow Items.' Lender may, at any lime, collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from lime to lime, 12 U.S.C. 2601 et seq. ('RESPA'). unless another law that applies to the Funds sets a lesser amount. II so, Lender may, at any lime, collect and hold funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of correct data and reasonable estimates of expenditures of future Escrow Items or otherwise In accordance with applicable law. The Funds shall be held In an institution whose deposits are Insured by a federal agency, Instrumentality, or entity (including Ler ler, If Lender Is such an Institution) or In any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower Interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require .Borrower to pay a one-time charge for an Independent real estate tax reporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree In writing, however, that Interest shall be paid on the Funds. Lender shall give to Borrower, without charge. an annual accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to tire Funds was made. The Funds are pledged as additional security for all sums secured by this Security Instrument. EXHIBIT "B" PAGE 1 OF 4 % II the Funds held by Lender excer ie amounts permitted to be held by applicable r, Lender shall account to Borrower for the ' : excess f=unds in accordance'with the requirements of applicable law. If the amount of the Funds held by Lender at any lime Is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing, and, In such case Borrower shall pay to Lender the . amount necessary to make up the deficiency. Borrower shall make up the deficiency In no more than twelve monthly payments, at Lender's sole discretion. Upon payment in full of all sums secured by this Security Instrument,Lender shall promptly refund to Borrower any Funds held by' Lender. II under paragraph 21, Lender shall acquire or sell the Properly, Lender, prior to the acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sate as a credit against the sums secured by this Security Instrument. 3. Application of Payments. Unless applicable law provides otherwise,ail payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, lines and impositions attributable to the Properly which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these obligations In the manner provided In paragraph 2, or if not paid In that manner, Borrower shall pay them on lime directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the ten by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security instrument, Lender may,give Borrower a notice Identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days o1 the giving of notice. 5. Hazard or Property Insurance. Borrower shall keep the Improvements now existing or hereafter erected on the Properly Insured against loss by fire, hazards included within the term 'extended coverage" and any other hazards, Including floods or flooding, for which Lender requires Insurance. This Insurance shall be maintained In the amounts and for the periods that Lender requires. The Insurance carrier providing the Insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. If Borrower tails to maintain coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All Insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires. Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree In writing. insurance proceeds shall be applied to restoration or repair of the •Properly damaged, if the restoration or repair is economically feasible and Lender's security Is not lessened. If the restoration or repair Is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has oflered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due.The 30- day period will begin when the notice Is given. Unless Lender and Borrower otherwise agree In writing, any application of proceeds to principal shall not extend or_..postponer e due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the payments. If under per graph t e Property Is acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from damage to the Prope[Iji'icor 1 to , acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition. f 6. Occupancy, Preservation Maintenance and Protection of Property; Borrower's LoarrApplicitibn; - -• Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the exertion M of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one yearafter the day of - , occupancy, unless Lender otherwise agrees In writing, which consent shall not be unreasonably withheld, or unless extenua circum Ices exist which are beyond Borrower's control. Borrower shall not destroy, damage or Impair the Properly, allow the Property,jp aeteriqj, or. commit waste on the Properly. Borrower shall be in default if any forfeiture action or proceeding, whether civil or crir ii, Is begrin that in Lender's good faith judgement could result In forfeiture of the Property or otherwise materially impair the lien created p.r. this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 10, by using the action or proceeding to be dismissed with a ruling that, in Lender's good faith determination, precludes forfeiture of the Borrower's Interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest. Borrower shall also be In default If Borrower, during the loan application process, gave materially false or inaccurate Information or statements to Lender (or failed to provide Lender with any material Information) in connection with the loan evidenced by the Note, Including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. II this Security Instrument Is on a leasehold, Borrower shall comply with all the provisions of the lease. 11 Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained In this Security Instrument, or there Is a legal proceeding that may significantly affect Lender's rights In the Property (such as a proceeding In bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever Is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security instrument, appearing in court, paying reasonable attorneys'tees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by tills Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with Interest, upon notice from Lender to Borrower requesting payment. 8. Mortgage Insurance. II Lender required mortgage Insurance as p condition of making the loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage Insurance In ellect. II, for any reason, the mortgage Insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall pay the premiums required to obtain coverage substantially equivalent to the mortgage Insurance previously In effect, at a cost substantially equivalent to the cost to Borrower of the mortgage Insurance previously in ellect, from an alternate mortgage Insurer approved by Lender. II substantially equivalent mortgage Insurance coverage Is not available, Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly mortgage Insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept, use and retain these payments as a loss reserve In lieu of mortgage Insurance. Loss reserve payments may no longer be required, at the option of Lender, If mortgage insurance coverage (In the amount and for the period that Lender requires) provided by an Insurer approved by Lender again becomes available and Is obtained. Borrower shall pay the premiums required to maintain mortgage Insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9. Inspection. Lender or its agent may make reasonable entries upon and Inspections of the Property. Lender shalt give Borrower notice al the lime of or prior to an inspection specifying reasonable cause for the Inspection. RVUTRTT "R" PA(J1' 9 f11: It __ ., .10. Condemnation. the proceed. any award or claim tui ,' am'other taking of any part of the Properly, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Properly, the proceeds shall be applied to the sums secured by this Security instrument,whether or . not.then due,with any excess paid to Borrower. In the event of a partial taking of the Property In which the fair market value of the Property Immediately before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the taking unless Borrower and Lender otherwise agree In writing, the sums secured by this Security instrument shall be reduced by the amount of the proceeds multiplied by the following fraction: (a) the total amount of the sums secured Immediately before the taking, divided by (b) the fair market value of the Properly immediately before the taking. Any balance shall be paid to Borrower. In the event of partial taking of the Properly In which the lair market value of the Property Immediately before the Inking Is less than the amount of the sums secured Immediately before the taking, unless Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. Ii the Property Is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor tonder make n a rizeand or settle a claim for damages, Borrower falls to respond to Lender within 30 days after the date the notice Is given, to collect and apply the proceeds, al Its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument,whether or not then due. Unless Lender and Borrower otherwise agree In writing,any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of such payments. 11. Borrower Not Released; Forbearance By Lender Not A Waiver. Extension of the lime for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in Interest of Borrower shall not operate to release the 'liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrowers or Borrower's successors in interest. Any forbearance by Lender In exercising any right or remedy shall not be a waiver of or preclude the exercise o1 any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of ' paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who ton co-signs us this Security city Instrr'sum t butn does oes not execute the Note: (a) Is co-signing this Security instrument only to mortgage, grant eytsaurhd by Burrhos Securntye Inslrumehr Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums and (c) agrees that Lender and any other Borrower may agree to extend, modify. forbear or make any accommodations with regard to the ; terms of this Security Instrument or the Note without that Borrower's consent. 13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law Is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. II a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing It by first class mail unless applicable law requires use oI another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mall to Lender's address statedaherein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shE:.be de&l d to have been given to Borrower or Lender when given as provided In this paragraph. 15. Governing Law; Severability. This Security Instrument shall be governed by federal law and the la)y,01 the juii diction' in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note colas with ppslicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given -+effect witl Jt ti{)i conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. • 16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security instrument' f-: 17. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Propedyjoofany Merest in it is sold or transferred (or if a beneficial Interest In Borrower Is sold or transferred and Borrower Is not a natural persdhb-wilhou'tXender'S' prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security 4Tetrument. wever, this option shall not be exercised by Lender if exercise Is prohibited by federal law as of the date of this Security Instrument. CO If Lender exercises this option, Lender shall give Borrower notice of acceleration.Tire notice shall provide a period of not less than 30 days from the te the notice llmailed within which Borrower must pay all sums secured by his ely slrument. l8 orrower tails topay thsesums prior to the expiration olthis period. Lndermay invoke any remedies permitted by this Security Instrumentwithout further notice or demand on Borrower. 18. Borrower's Right to Reinstate. II Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security instrument discontinued at any time prior to the earlier ol: (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the Properly pursuant to any power ol sale contained in this Security ell sumsns rumhich t; or (b) bendue under try of a judgment enforcing this Security Instrument. those conditions are that Borrower: (a) pays Lender this Security instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements;(c) pays all expenses Incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) lakes' such action as Lender may reasonably require to assure that the lien of this Security instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower,this Security Instrument and the obligations secured hereby shall remain fully effective as If no acceleration had occurred. However, this,right to • reinstate shall not apply In the case of acceleration under paragraph 17. 19. Sale of Note; Change of Loan Servicer.The Note or a partial interest in the Note (together with this Security Instrument) may be sold one or more limes without prior notice to Borrower. A sale may result In a change In the entity (known as the 'Loan Servicer") that collects monthly payments due under the Note and this Security instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there Is a change oI the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14 above and applicable law. The notice will state the name and address of the new Loan Servicer • and the address to which payments should be made. The notice will also Contain any other Information required by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or In the Property. Borrower shall not do, nor allow anyone else to do. anything affecting the Property that Is In eding sentences all not apply the violation of Hazardous Substances that arecgenerallyo a recognized tohbe appropriate oto normal presence, r storage gresidentialuses and the small quantitiesto maintenance of the Properly. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous substance affecting the Property is necessary. Borrower shall promptly lake all necessary remedial actions In accordance with Environmental Law. EXHIBIT "B" PAGE 3 OF 4 ' t As used ill ties (,alaylapu tu, uvus a r.i u,� s -1 Environmental Law and the following sub! .:es: gasoline, kerosene, other flammable or C petroleum products, toxic pesticides and • ' herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radloaclive materials. As used in this paragraph 20, 'Environmental Law' means federal laws and laws of the jurisdiction where the Property Is located that relate to health, , • safely or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following. Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraph 17 unless applicable law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrutnent, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender, at its option, may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but not limited to, reasonable attorneys' fees and costs of title evidence. 22. Release. Upon payment of all sums secured by this Security instrument, Lender shall release this Security Instrument without charge to Borrower. 23. Waivers. Borrower relinquishes all right of dower and waives all right of homestead and distributive share In and to the Property. Borrower waives any right of exemption as to the Property. 24. Redemption Period. If the Property is less than 10 acres in size and Lender waives in any foreclosure proceeding any.right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 6 months. If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 60 days. The provisions of this paragraph 24 shall be construed to conform to the provisions of Sections 626.26 and 628.27 of the Code of Iowa. 25. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as II the rider(s)were a part of this Security Instrument. [Check applicable box(es)1 ❑Adjustable Rate Rider ❑Condominium Rider ❑1-4 Family Rider ❑Graduated Payment Rider ❑Planned Unit Development Rider ❑Biweekly Payment Rider ❑Balloon Rider ❑Rate Improvement Rider ❑Second Home Rider ❑Other(s) [specify) BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and In any riders) executed by Borrower and recorded with II. The undersigned borrower(s) acknowledge(s) receipt of a copy of this instrument. a Witnesses: � idd — (Seal) Borrower Antho r W. Wilson . A r/1/1/ j' lL-C.0 .S (seal) Borrower Connie K. Wilson O 7MINIM it i f 1-< a v� --1 (space Below Tins Line For Acknowledgment] %A STATE OF IOWA ) ss: COUNTY OF Johnson 1111} On this 8th day of June 1995 , before me, a Notary Public In the State of Iowa, personally appeared: Anthony W. Wilson and Connie K. Wilson ,husband and wife to me personally known to be the person(s) named in and who executed the foregoing instrument, and acknowledged that they executed the same as their voluntary act and deed. • My commission expires: ✓��'`77 Y •� �1� ., . -n and for sold County and Stale y-,^r —/ (Space Below Tins Line Reserved For lender and Recorder] EXHIBIT "B" PAGE 4 OF 4 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, I.D. No. 42-0335350, and the CITY OF IOWA CITY, Equity N° Plaintiff, vs. AFFIDAVIT OF PLAINTIFF'S ATTORNEY FOR ATTORNEY'S FEES ANTHONY W. WILSON, CONNIE K. WILSON, THE CITY OF IOWA CITY and ANY PARTIES IN POSSESSION, and UNKNOWN CLAIMANTS TO: LOT 10 IN BLOCK 6 IN SUNNYSIDE ADDITION o TO IOWA CITY, IOWA, ACCORDING B • TO THE RECORDED PLAT THEREOF. r" n__ v Defendants. -o " _tTE N N "•� STATE OF IOWA ) � )ss: to COUNTY OF JOHNSON ) I, Catherine A. Pugh, being duly sworn, do depose and say I am a regular attorney, and one of the attorney's of the Plaintiff, and that the fee claimed herein is for service actually rendered in this case. There has been and is no agreement, express or implied, between me and client, or between me or any other person, unless a practicing attorney engaged as such with me in this cause, for any division or sharing of fee to be taxed. The Defendant had information of the whereabouts of the contract sued on, and reasonable opportunity to pay the same before the suit was brought therein. STEIN, RUSSELL & PUGH, L.L.P. L. Jay Stein A.I.N. 000005283 OA t AftLP ?LA L STEIN, RUSSELL Catherine A. Pugh A.Ifi1. 000014480 & PUGH, L.L.P. ATTORNEYS ENGLENT BLDG..P.O.BOX 2416 ATTORNEY FOR PLAINTIFF IOWA CITY,IOWA 52244 FAX 319.351.6409 TELEPHONE 319.351.5610 EXHIBIT "C" PAGE 1 OF 2 5 , : • . Subscribed and sworn to before me by Catherine A. Pugh this j/,� day of ,,, , 1996. / , ,..ii, 6-64,-,‘ tar Public in d for the State of Iowa 4,•'"ip LINDA K. GORDON ?lir U C ukusgON ECX I ES .. L • c-7-,- ma Rte.,. - -0 OTT ....z: f >aN STEIN, RUSSELL a PUGH, L.L.P. ATTORNEYS EXHIBIT "C" ENGLERT BLDG..P.O.BOX 2416 IOWA CITY.IOWA 52244 PAGE 2 OF 2 FAX 319-351-6409 TELEPHONE 319-351-5610 1 • RESOLUTION NO. 95-25 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST A SUBORDINATION AGREEMENT BETWEEN THE CITY OF IOWA CITY AND IOWA STATE BANK AND TRUST COMPANY FOR PROPERTY LOCATED AT 1521 BROADWAY STREET. WHEREAS, the City of Iowa City is the owner and holder of a certain Conditional Occupancy Loan which has a current amount due of $37,000, and this loan was executed by the owner of 1521 Broadway Street on October 29, 1993, and recorded April 8, 1994, in Book 1729, at Pages 226-230 in the Johnson County Recorder's Office covering the following described c'1 real estate: • j Lot Ten (10) in Block Six (6) in Sunnyside Addition to Iowa B O�DbJ.9a, according to the recorded plat thereof, iy/7 95 JUI4 16 AM9: 13 and WHEREAS, Iowa State Bank and Trust Company, Johnson County, Iowa, will gk,4 a lP 1i 2de the sum of $51,000 on a promissory note that will be executed by the Jnet tfj1152(1z Broadway Street covering the real estate described above, and OWA WHEREAS, Iowa State Bank and Trust Company has requested that the City execute the • attached subordination agreement, thereby making said rehabilitation lien held by the City subordinate to the lien of said mortgage that was by Iowa State Bank and Trust Company, and WHEREAS, there is sufficient value in the above-described real estate to secure said rehabilitation loan as a second lien. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT the Mayor is authorized to execute and the City Clerk to attest the attached subordination agreement between the City of Iowa City and Iowa State Bank and Trust Company of Iowa City, Johnson County, Iowa. Passed and approved this 14th day of February , 1995. / • �ii� .. M'YOR •.r.•:• by ;/ CIT' CLERK City ttorn ficeZ_y�.� - •:., • SEAL • ppdrehab11521hrdw.'aso 01 111 ?acF i,s^ —0 rim CD • r �J . w EXHIBIT "D" PAGE 1 OF 5 • . Resolution No. 95-25 P: s Page It was moved by Novick and seconded by Throv,morton the Resolution be adopted, and upon roll-call there were: . AYES: NAYS: ABSENT: Baker -� — Horowitz X Kubby X Lehman • Novick Pigott —x-- Throgmorton • ka • O^ Q' C as i&'7=7ir- n\ N y r"". 14r f s� nt • y 6 -. t)17 ��;c- 138 EXHIBIT "D" PAGE 2 OF 5 1 • SUBORDINATION AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, herein the City, and • IOWA STATE BANK AND TRUST COMPANY Of IOWA CITY. IOWA herein the Financial Institution. WHEREAS, the City is the owner and holder of a certain rehabilitation loan which at this time is in the amount of $ 37,000.00 and was executed by AOAnthony2and Co nie9 , 193W 1 sonorded on (herein the Owner), dated April 8 , 19 94 , in Book 1729, Pages 226-2301ohnson County . / Recorder's Office, covering the following-described real property: Lot ten (10) in Block six (6) in Sunnyside Addition to Iowa City, Iowa, according to the recorded plat thereof. kr) c rn 7)- f ' iV Y - lD WHEREAS, the Financial Institution proposes to loan the sum of $ **51,000.00** on a promissory note to be executed by the Financial Institution and the Owner, securing a mortgage covering the real property described above; and WH bFiEa on to induce loan held by the City'al be subord subordinated to make theliensuch of the mortgage proposed that tothe reha be made by the Financial Institution. • NOW,THEREFORE,in consideration of the mutual covenants and promises of the parties hereto, the parties agree as follows: • 1. Subordination. The City hereby covenants and agrees with the Financial Institution that the above noted rehabilitation loan held by the City is and shall continue to be subject and subordinate to the lien of the mortgage about to be made by the Financial Institution. • 2. Consideration. The City acknowledges receipt from the Financial Institution of One Hundred and Fifty Dollars ($150.00)and other good and valuable consideration for its act of subordination herein. 3. Senior Mortgage. The mortgage in favor of the Financial Institution is hereby acknowledged as a lien superior to the rehabilitation loan of the City. • 1917aG[ 139 EXHIBIT "D" PAGE 3 OF 5 ' S 1 , , is • . • Page 2 SUBORDINATION AGREEMENT 4. Binding Effect. This agreement shall be binding upon and inure to the benefit of the respective heirs, legal representatives, successors, and assigns of the parties hereto. I-• i, ..4, CITY OF IOWA CITY FINANCIAL INSTITUTION IOWA STATE BANK AND TRUST CO '+.L--- By t fir, -a--vi.2(IBy - --- Of �E: :•' Lf ANNI. VICE-PRESIDENT By Attest: CORPORATE SEAL X37 221 ., SEAL ;- • ' ` , City-Clerk t" CITY'S ACKNOWLEDGEMENT —.. -o � N STATE OF IOWA ) •• SS: r.- JOHNSON COUNTY ) up� 5 On this (4 day of �".cbr,.4,- , 199 j',before me, the undersigned, a Notary Public in and for the State of Iowa, pfersonally appeared 5,...scti -r• -1-loro.a;-f-7 and Marian K. Karr,to me personally known, and,who,being by me duly sworn,did say that they are the Mayor and City Clerk, respectively, of the City of Iowa City, Iowa; that the seal affixed to the foregoing instrument is.the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council, as contained in (Ordh'ante)(Resolution)No. 'i5- '45 passed(the Resolution adopted)by the City Council, under Roll Call No. of the City Council on the /-/- " day of rei,,r'ca ry i 19 `l5 , and that Sew., -r-rt. r-(-,-,�:{ 7- and Marian K. Karr ackndwledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. NOTARIAL SEAL 5°, 7.4'-'.P- , - Notary Public in and for the State of Iowa STATE OF IOWA ) ) SS: JOHNSON COUNTY ) • On this 3RD day of FEBRUARY , A.D. 19 95 , before me, theeared undersigned, a Notary Public in and for the State of Iowa, personally app JERRY L. VANNI and , to me personally known, who .1 On gcf 140 EXHIBIT "D" PAGE 4 OF 5 t ` 4 • • SUBORDINATION AGREEMENT Page 3 being by me duly sworn, did say that they are the VICE-PRESIDENT and ,respectively,of said corporation executing the within and foregoing instrument to which this Is attached, that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors; and thattheid JERRY T._ VAIINT sah officers acknowledged the and execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. 9 4 � `� JAMES I 1 iiArrici / �)1, �I( I i N COMMISSION u :'. � ���1C� • - �S N• .ry Public in and for the State of Iowa Mnpwbrdntrr.agm • Q � t 19n i ?AG! i4i. • • EXHIBIT "D" PAGE 5 OF 5 FILED N BOOK ) b , ' • RESOLUTION NO. 95-115 95 JUN 16 AN 9: 13 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE CIT R.K C ;/. TO ATTEST A SUBORDINATION AGREEMENT BETWEEN THE CITY IQ1iVARDER CITY AND IOWA STATE BANK AND TRUST COMPANY FOR PRdIfi FtTlf CO.,IDWA ofe_ LOCATED AT 1521 BROADWAY STREET. WHEREAS, the City of Iowa City is the owner and holder of a certain Conditional Occupancy Loan which has a current amount due of $37,000, and this loan was executed by the owner of 1521 Broadway Street on October 29, 1993, and recorded April 8, 1994, in Book 1729, at Pages 231-238 in the Johnson County Recorder's Office covering the following-described real estate: • Lot Ten (10) in Block Six (6) in Sunnyside Addition to Iowa City, Iowa; according to the recorded plat thereof, and WHEREAS, on May 8, 1992 the property owner executed a Promissory Note in the amount of $2,250 and this was recorded June 9, 1992 in Book 1383, Pages 308-312 at the Johnson County Recorder's Office, and WHEREAS, Iowa State Bank and Trust Company, Johnson County, Iowa, will make a loan at the sum of 551,000 on a promissory note that will be executed by the owner of 1521 • Broadway Street covering the real estate described above, and WHEREAS, Iowa State Bank and Trust Company has requested that the City execute the attached subordination agreement, thereby making said rehabilitation lien held by the City subordinate to the lien of said mortgage that was by Iowa State Bank and Trust Company, and WHEREAS, there is sufficient value in the above-described real estate to secure said rehabilitation loan as a second lien. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT the Mayor is authorized to execute and the City Clerk to attest the attached subordination agreement between the City of Iowa City and Iowa State Bank and Trust Company of Iowa City, Johnson County, Iowa. Passed and approved this 23rd day of May , 1995. SEAL ,�. A.. . . . A.�f •. by ATTEST: Q(J k Gadd? � � V1 CITY CLERK City A'f•rney's Office ppdreheb11521 brdw.na 4.0• _ © o •. -!�I�� 112 • rrl ..� . s J • EXHIBIT "E" PAGE 1 OF 5 • Resolution No. 95-1 _ •• 4 Page 2 ' It was moved by Novick and seconded by Lehman the Resolution be adopted, and upon roll.call there were: . AYES: NAYS: ABSENT: Baker Horowitz X X Kubby X Lehman -�— Novick • Pigott -x-- x Throgmorton O Oe C„ ?zSb n_1 ZFCN . 1917 ?AGE j43 EXHIBIT "E" PAGE 2 OF 5 4.14 .. .4 4 • SUBORDINATION AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, herein the City, and •:s IOWA CITY, IOWA , herein the Financial Institution. WHEREAS, The City is the owner and holder of certain rehabilitation loans which were executed by Anthony and Connie Wilson (herein the Owner), dated May 8, 1992, recorded stay 9, 1992, in Book 1383, Page 308; dated October 29, 1993, recorded April 8, 1994 in Book 1729, Page 231; and dated October 29, 1993 and recorded April 8, 1994 in Book 1729, Page 234, covering the following described property: Lot ten (10) in Block six (6) in Sunnyside Addition to Iowa City, Iowa, according to the recorded plat thereof. t.0 �..,♦ , 0 .Mt.,. .. b WHEREAS, the Financial Institution proposes to loan the sum of $y.,.000 on******** on a promissory note to be executed by the Financial Institution and the Owner, securing a mortgage covering the real property described above; and WHEREAS, to induce the Financial Institution to make such loan, it is necessary that the rehabilitation loan held by the City be subordinated to the lien of the mortgage proposed to be made by the Financial Institution. • NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, the parties agree as follows: 1. Subordination. The City hereby covenants and agrees with the Financial Institution that the above noted rehabilitation loan held by the City is and shall continue to be subject and subordinate to the lien of the mortgage about to be made by the Financial Institution. 2. Consideration. The City acknowledges receipt from the Financial Institution of One Hundred and Fifty Dollars ($150.00) and other good and valuable consideration for its • act of subordination herein. • t r -A5: 114 • EXHIBIT "E" PAGE 3 OF 5 • ''4 SUBORDINATION'AGREEMENT Page 2 • .3. Senior Mortgage. The mortgage in favor of the Financial Institution is hereby acknowledged as a lien superior to the rehabilitation loan of the City. 4. Binding Effect. This agreement shall be binding upon and inure to the benefit of the respective heirs, legal representatives, successors, and assigns of the parties hereto. Dated this 23 .d day of U , 19 75 CITY OF IOWA CITY FINANCIAL INSTITUTION L IOWA STATE BAk__'' ' RUST COMPANY By _ . //ter By��- May r JERRY L. VANNI, VICE PRESIDENT By Attest: CORPORATE SEAL A' " ) SEAL City Clerk CITY'S ACKNOWLEDGEMENT STATE OF IOWA SS: JOHNSON COUNTY 5 On this 23 day of , 1991; before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Susc," m_ µwaw rz and Susan K. tdalahto me personally known, and, who, being by me duly sworn, did say that they are the Mayor and ftf Clerk, respectively, of the City of Iowa City, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on olubehalf the corporation, by authority of its City Council, as contained in (Ordinance)-(Resolution) No. of the passed (the Resolution adopted) by the City Council, under Roll Call No.19 — and that City Council on the 23 = day of walsli cknowledged the execution of the Susan •,n, �-torow�-4-1 andSusan�K. a instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. NOTARIAL SEAL Notary Public in and for the State of Iowa STATE OF IOWA • ) SS: JOHNSON COUNTY C� Gl v:. Di, ?AGE 145 w • � v -a Cv EXHIBIT "E" PAGE 4 OF 5 tib; .04 _ Page 3 SUBORDINATION AGREEMENT ' - On this 16 day of MAY , A.D. 19 95 , before me, the personally undersigned, a Notary Public in and for the State of Iowa, o personally known,appeared wed ho �ggnY r VANNT }( igiX being by me duly sworn, did say that they are the VICE PRESIDENT gni , respectively, of said corporation executing the within and foregoing instrument to which this is attached, that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors; and that the suchsaid officers JERRY L. VANNT acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. 4 t,Aa,K___ 411L-- Notary Public in and for_ ,tate of Iowa nUnglsubrdntn.agm • IS,1106 4.0 _ — rr 0�� ,477 191:7 AG[ 146 ti • • EXHIBIT "E" , PAGE 5 OF 5 END OF CASE FILE RECEIVED N O V ' '996 ci i f ATTORNEYS Q;CE IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY CHRISTOPHER J. LENZ, ) Law No. 57191 Plaintiffs, ) 9, / - v. ) fg yo`� DISMISSAL WI •1l s `0 EDWIN C . McMARTIN, individually and as ) PREJUDICE ' ��l� a Police Officer of the City of Iowa ) %;0 ''-' City, Iowa, and THE CITY OF IOWA CITY, ) Q, ll' 'r Cvlij Defendants . ) j44:4I Comes now Christopher J. Lenz , Plaintiff in the above action, by and through his attorneys, Riccolo & Baker, P. C. , and dismisses the above action with prejudice . 6/John Riccolo RICCOLO & BAKER, P .C. Suite 1140, The Center 425 Second Street SE Cedar Rapids IA 52401 ATTORNEYS FOR PLAINTIFF C7 Copies t o: r-rt Charles W. Brooke BROOKE & O' BRIEN, P .L .C . 2322 E. Kimberly Road Davenport IA 52807 Q Linda Newman Woito - 410 E . Washington Street Iowa City IA 52240 Bruce L. Walker PHELAN, TUCKER, MULLEN, WALKER, TUCKER & GELMAN CERTIFICATE OF SERVICE 321 East Market Street The undersigned hereby certifies that a copy of this P .O. Box 2150 document was served upon counsel of record for Iowa City IA 52244-2150 each party to this action by mail in compliance with Rules of Civil Procedure on the a day cf _ _ C. �Glz ..__ FULL AND FINAL RELEASE OF ALL CLAIMS The undersigned, CHRISTOPHER J. LENZ, being of legal age, do hereby acknowledge payment in the sum of twelve thousand dollars ($12 , 000) , in consideration of which payment I do hereby release, acquit and forever discharge EDWIN C. McMARTIN, individually and as a Police Officer of the City of Iowa City, Iowa and The City of Iowa City, and all other related persons, firms and corporations, from any and all liability whatever, including all claims, demands and causes of action of every nature affecting me which I may have or ever claim to have in the future arising out of an incident on May 3 , 1994 . As further consideration of said payment, I hereby agree : 1 . This release covers all damages, whether known or not and which may hereafter appear or develop =--4 =4ng from the matters above referred to . 2 . That the above sum is all that will ever be received and that no promise for any other or further consideration has been made by anyone. No additional or further claims will be made to recover court costs, attorney fees, expenses or any other sums or amounts of whatever nature. 3 . This release is executed as a compromise settlement of a disputed claim, liability for which is expressly denied by the parties released and that the payment of the above sum does not constitute an admission of liability on the part of any person or entity. 4 . That I am executing this release solely in reliance upon my own knowledge and the advice of my attorney and not upon any representations made by the parties released or others on their behalf . I have read the foregoing release, understand its terms and freely and voluntarily sign the same. Dated at Iowa City, Iowa, this p day of November, 1996 . CHRISTOR J.:-LENZ STATE OF IOWA, COUNTY OF JOHNSON ) ss : Subscribed and sworn to by CHRISTOPHER J. LENZ on this +Z day of November, 1996, before the undersigned, a ly appointed and acting Notary Public in and for sa State. 474/1^- .7/ Notary Public END OF CASE FILE THE IOWA STATE BAR ASSOCIATION • ~Ism L.M.raen FOR THE LEGAL EFFECT OF THE USE OF MBA*03619 Official Form No. 303 Meardon, Suep#,Down'r&Hayes P.L.C. THIS LAWYER FORM.CONSULT YOUR ' 4 11 Y A • ,t,Tt a THE IOWA DISTRICT COURT -r JOHNSON COUNTY �n CT% c) t= , - rn - 76 M. KABIR YOUNOSZAI andLAW ® c, 1 -n�- cr. HAYAT YOUNOSZAI , p EQUITY ❑ No. o of Cp . Plaintiff(s), N VS. --1 , • CITY OF IOWA CITY, IOWA; ') MICHAEL E HODGE; JULIE K. HODGE If you require and MICHAEL HODGE CONSTRUCTION q re(#��, taflt of auxiliary iId COMPANY, Defendant(s). services to participate in court becaus o a disability, immediately call your district A A coordinator at 319-398-3920. Ext. 200 (If,lyou are hearing impaired, call Relay Iowa TTY at 1 1-800-735-2942). TO THE ABOVE-NAMED DEFENDANT(S): You are hereby notified that there is now on file in the office of the clerk of the above court a petition I II in the above-entitled action, a copy of which petition is attached hereto. The name(s) and address( s of Ii ll the plaintiff'g(s') attorney(s) kx(are) ,l i' William L. Meardon and Charles A. Meardon, Meardon, Sueppel, Downer & I Hayes P .L.C. , 122 South Linn Street, Iowa City, Iowa 52240 !I I You are further notified that unless, within 60 days following the filing of this notice with the II secretary of state of the State of Iowa, you serve, and within a reasonable time thereafter file a motion or ! I !I ii answer, in the Iowa District Court for Johnson County, i, at the courthouse in Iowa City , Iowa, default will be rendered against you by the court. EDWARD F. STEINBRECI4 I ii ! (SEAL) 4 �,ItA, /.1s1'/ :I CLERK OF THff ABOVE COURT -' i Johnson County Courthouse I Iowa City , Iowa 52240 it NOTE: The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. i ©The Iowa State Bar Association 303 ORIGINAL NOTICE AGAINST FOREIGN CORPORATION OR NON-RESIDENT UNDER 617.3, THE CODE CALFS Release 1.0 11/92 Revised March, 1991 4 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY t.0 v M. KABIR YOUNOSZAI and ) >7.7; HAYAT YOUNOSZAI, ) LAW NO. -... -<r- Plaintiffs, ) = o f? vs . ) �sV PETITION AT LAW cc-;55-121--i O CITY OF IOWA CITY, IOWA; ) MICHAEL E. HODGE; JULIE K. ) r r: HODGE and MICHAEL HODGE ) CONSTRUCTION COMPANY, ) • C3 0 Defendants . ) � ` rn Plaintiffs state : 1 . Plaintiffs are residents of Prospect, Kentucky, and the current owners of certain real estate locally known as the Burkley Building, located at 130 East Jefferson Street, Iowa City, Johnson County, Iowa . 2 . Defendant, City of Iowa City, Iowa ( "City" ) , is a municipal corporation existing under the laws of the State of Iowa. 3 . Defendants, Michael E. Hodge and Julie K. Hodge, are residents of Johnson County, Iowa . Defendant, Michael Hodge Construction Company, is, to the knowledge of Plaintiffs, an Iowa corporation having a principal place of business in Iowa City, 2 Johnson County, Iowa . These Defendants are collectively referred to as "Hodge" where appropriate . 4 . During late 1986 Rita Arora ( "Arora" ) , a local real estate agent, was searching for investment property for Plaintiffs . Arora learned that the Burkley Building, a 27- apartment unit complex, was available for sale and so informed Plaintiffs . Arora prepared a written offer dated December 26, 1986 , on the Burkley Building, had Plaintiffs sign it and presented it to the then owner, Hodge . A copy of the offer is attached hereto as Exhibit "A. " 5 . Hodge made a counteroffer and, as a part of the sale, required Plaintiffs to retain Hodge as manager of the Burkley Building for two (2) years subsequent to the sale, and pay Hodge seven percent (7%) of the gross income from the property as a fee. A copy of Hodge' s counteroffer is attached hereto as Exhibit "B . " Plaintiffs accepted Hodge' s counteroffer and agreed to pay Four Hundred Thirty-five Thousand Dollars ($435 , 000) for the Burkley Building. 6 . Plaintiffs and Hodge subsequently signed a real estate yd} s t' Asan} contract dated December 31, 1'986,=: whi.c 1 completed the purchase . A copy of said contract is 3gaf;6to Exhibit "C. " . • a 3 7 . Pursuant to Exhibit "A" and as previously stated, Hodge required Plaintiffs to hire his company, Michael Hodge Construction Company, to manage the property. A management agreement was prepared by Hodge and signed with Plaintiffs . A copy of the management agreement is attached hereto as Exhibit "D 8 . The balance of Plaintiffs' contract with Hodge became due on December 31, 1990 . Plaintiffs financed the payoff of the contract and received a deed for the Burkley Building on or about January 16, 1991 . A copy of said deed is attached hereto as Exhibit "E . " 9 . The Burkley Building was built in 1839 . In the late 1970s and early 1980s, the City was interested in having the then owners of the building renovate it . The City commissioned a report ( "the report" ) , prepared by engineer Noel Willis, on the Burkley Building. The report, delivered to the City in 1980, disclosed the existence of severe structural deficiencies in the Burkley Building. A copy of the report is attached as Exhibit "F. " The report was placed in the City' s building and inspection department file for the Burkley Buildungc ! I^ 8Z :110 9Z 330 96 { 4 10 . Since prior to 1980 and continuously through April, 1996 , the City' s building and inspection department has routinely inspected the Burkley Building to insure compliance with various safety codes imposed by the City. After the inspections the City issued rental permits for the Burkley Building up through 1995- 96 , notwithstanding the report concerning the building in the files of the City' s building and inspection department . 11 . On April 25, 1996 , the City notified Plaintiffs that the Burkley Building was not fit for habitation and directed Plaintiffs to have the building vacated on or before June 1, 1996 . The City ordered Plaintiffs to repair or demolish the Burkley Building. A copy of the City' s Notice of Declaration of Dangerous Building and Order to Vacate and Repair or Demolish ( "the Notice" ) is attached as Exhibit "G. " The Notice is based on alleged structural problems with the Burkley Building. Plaintiffs' appealed the Notice to the City' s Board of Appeal and on December 4 , 1996 , a subcommittee of the Board of Appeal issued a report, a copy of which is attached hereto as Exhibit "H. " 12 . Plaintiffs hired a structural engineer, Robert C. Lentfer, P.E . , to evaluate the Burkley BEU lding,' `and on August 13 , 1996, he completed his report, and8 e. y 9 -2, 1 report is 5 attached hereto as Exhibit "I . " Exhibit I disclosed to Plaintiffs for the first time the nature and extent of the structural defects as well as the estimated cost of rehabilitation. 13 . Plaintiffs complied with the Notice to remove all tenants, and the Burkley Building currently generates no income . Plaintiffs presently have a mortgage lien against the property in excess of Two Hundred Thousand Dollars ($200, 000) . COUNT I NEGLIGENT MISREPRESENTATION - HODGE Plaintiffs reallege paragraphs 1 through 13 above . 14 . Hodge, the owner and manager of a construction company in Iowa City, Iowa, was aware of the report prior to the time he sold Plaintiffs the Burkley Building. 15 . Hodge knew or should have known of the structural defects in the Burkley Building prior to the time he sold it to Plaintiffs . 16 . Hodge derived a pecuniary benefit from the sale of the Burkley Building to Plaintiffs . 17 . Hodge failed to disclose the existence of the structural defects of the buildirW t61i61lagi .lii . 4 h 6 18 . Plaintiffs relied on the representations made by Hodge in purchasing the Burkley Building from him. 19 . As a direct and proximate result of Hodge' s misrepresentation, Plaintiffs were damaged. 20 . Plaintiffs' damages exceed the jurisdictional amount set forth in Rule 5, Iowa Rules of Appellate Procedure . ..o By reason of the foregoing, Plaintiffs ask that the Court Cs) o enter judgment against Hodge in an amount suffic gnt- o compensate them for their damages plus interest and the casts bf CD this action. COUNT II BREACH OF CONTRACT - HODGE Plaintiffs reallege paragraphs 1 through 13 above . 21 . In both the offer to buy and the real estate contract between Plaintiffs and Hodge, Hodge impliedly agreed to convey a building free of structural defects . 22 . In his management contract with Plaintiffs, Hodge agreed to provide, among other things, competent management services, periodic inspections of, and necessary maintenance and repair of the Burkley Building. 7 23 . By conveying a building to Plaintiffs with structural defects and by failing to do appropriate inspections of and repairs to the building, Hodge breached the contracts with Plaintiffs . 24 . As a direct and proximate result of Hodges' breaches of contract, Plaintiffs were damaged. 25 . Plaintiffs' damages exceed the jurisdictional amount set forth in Rule 5 , Iowa Rules of Appellate Procedure . By reason of the foregoing, Plaintiffs ask that the Court enter judgment against Hodge in an amount sufficient to compensate them for their damages plus interest andc.€-_,"he fists of this action. r. - COUNT II I _ FRAUDULENT MISREPRESENTATION - HODGE > n Plaintiffs reallege paragraphs 1 through 13 and paragraphs 21 through 25 above . 26 . Hodge knew of the structural defects in the Burkley Building and the existence of the report prior to the sale to Plaintiffs . 27 . Hodge failed to disclose the existence of the report and the structural defects to Plaintiffs prior to the sale. 8 28 . Hodge intended to deceive Plaintiffs when he failed to disclose the defects in the Burkley Building to Plaintiffs . 29 . Had Hodge disclosed the existence of the report or the structural defects of which he was aware, Plaintiffs would not have purchased the Burkley Building from him. 30 . As a direct and proximate result of Hodge' s failure to disclose the matters alleged above, and Plaintiffs' reliance on Hodge, Plaintiffs were damaged. 31 . Plaintiffs' damages exceed the jurisdictional amount set forth in Rule 5, Iowa Rules of Appellate Procedure . By reason of the foregoing, Plaintiffs ask that the Court enter judgment against Hodge in an amount sufficient to [io compensate them for their damages plus interest and }ie costs of this action. "` ii f` g 0 COUNT IV esu MALICE - THE CITY Plaintiffs reallege paragraphs 1 through 13 above . 32 . The City, having commissioned and paid for the report, knew of the structural defects in the Burkley Building. 9 33 . During the early 1980s, the City actively solicited owners of the Burkley Building to apply for grants to renovate the Burkley Building. 34 . Notwithstanding the City' s control over the Burkley Building, and the structural defects therein as shown in the report commissioned by the City, and notwithstanding the City' s building and inspection department' s knowledge of the report, the City continued to issue rental permits for the Burkley Building without specifying the known structural deficiencies. 35 . Had the City performed proper inspections of the Burkley Building, or considered and disclosed the report in its file, the City would not have issued the rental permits therefor, and Plaintiffs would not have purchased the Burkley Building. 36 . The City' s actions outlined above constitute actual malice . 37 . As a direct and proximate result of the City' s failure to reveal the structural defects of the building, Plaintiffs were damaged. Er 38 . Plaintiffs' damages exceed the jurisdictisonal mount ni NJ set forth in Rule 5, Iowa Rules of Appellate Procedure01 . .ti _.774b xT C 10 By reason of the foregoing, Plaintiffs ask that the Court On cr: enter judgment against the City in an amount s4 'ficvent to compensate them for their damages plus interest and the cysts of this action. • COUNT V t3' NEGLIGENCE - THE CITY Plaintiffs reallege paragraphs 1 through 13 above . 39 . The City, having commissioned and paid for the report, knew of the structural defects in the Burkley Building. 40 . During the early 1980s, the City actively solicited owners of the Burkley Building to apply for grants to renovate the Burkley Building. 41 . Notwithstanding the City' s control over the Burkley Building, and the structural defects therein as shown in the report commissioned by the City, and notwithstanding the City' s building and inspection department' s knowledge of the report, the City continued to issue rental permits for the Burkley Building without specifying the known structural deficiencies. 42 . The City performed many inspections of the building prior to the time that Plaintiffs purchased it and many times thereafter and issued repair orders and notices of violations . 11 43 . The conduct of the City over the years constitutes supervision and control of the property. 44 . As a direct and proximate result to the City' s conduct, Plaintiffs were damaged. 45 . Plaintiffs' damages exceed the jurisdictional amount set forth in Rule 5, Iowa Rules of Appellate Procedure . By reason of the foregoing, Plaintiffs ask that the Court enter judgment against the City in an amount sufficient to compensate them for their damages plus interest and the costs of this action. MEARDON, SUEPPEL, DOWNER & HAYES P.L. C. 4./4 .i././.,A4di Wil, iam �% Me-rdon 000003619 II / By Al '. I I if /` . //._. �J4 Charles A. Meardon 000009771 122 South Linn Street Iowa City, Iowa 52240 Telephone : 319/338-9222 ATTORNEYS FOR PLAINTIFFS f +„ 9'1 :!!14 9) 1, ,; PURCHASE AGREEMEIN I Rf;At.Tpp'° IOWA December 26, 19 86 10 Michael Hodge That for and in consideration of the agreements and stipulations herein contained, I agree to purchase your property located at 1.30 East Jefferson, Iowa City,Iowa and described as follows Exact legal description to bP2taken from Abstraot7. (" ) 1 ,\ 'CCS-'.\4aa_w& &c c't M f h'3Si at-ill.�� IR' " - n,t \ (�aca /em o3 .,sand- Oo . M) � ,s 4225,''i00,00 )as•follows: 00.00 ,with this agreement as part payment,the same to be held in the trust countof Ambrose-Watts & Associates Realtors Inc. — ,inddelivered to the Seller at the time of closing upon performance of Seller's obligations hereunder. ,Jt �_ L_' G;'7c'a .awhen(formal contract)/( YINat�Y�`N) • g-�r9; 300.30 'to be paid� on or before December 31, , 19 6 , he executed and delivered to me. • Balance of purchase price by: • 31) a. Executing a formal contract(using the Iowa State Bar Association Installment Contract form)for the purchase of said property, in which I will agree to pay 5 350,000.00 at the rate of S 3.600.00 per month, (including interest)! until the entire purchase price together with interest at the rate of 12 % per annum,commencing on the 1st. day of February 1987 , payable mon• thly,be paid or until the amount due is reduced to the amount of the mortgage,now on or hereafter to be plat on said property. Monthly payments are to begin February 1, , 19 87 ,with remaining conti'dtt balane flue and payable by January 1, 1g 91 . 2.' n M{ (The installment contract shall provide for unlimited prepayment) - IN.) ' "" CT . ' • - .. . - - ..ysger4-4r it )-h9weYeF-ac 7:71. - ac>s>w5: _- — (Select whichever prepayment provision is applicable and strike out the remaining choices.) 0, . .. - oars with interes % per annum payable monthly with required payment of$ including principal an. - lus 1/12 taxes and 1/12 hazard insurance if required by mortgagee. Purchaser agrees to pay transfer fee,if any,an er se Seller's escrow account for taxes and insurance with mortgagee.If said mortgagee has the enforceable right to con id mortgage assumption, this agreement is subject to receipt by the purchaser of said consent. In the event said consent is no ta' in writing by the day of , 19 , her party .f,m,.p4.e_m.1y-Pfec-larc this agrees d-veld• c. Other: cf4 1 1 f (n�.lJ 1. This Agreement was drawn and submitted by: Rita Arora (Ambrose-Watts & Associates Realtors Inc.) . 2. The property is to be in as good condition as it now is,when possession is given,natural wear and tear excepted,and you are to carry S 350,000.00fire,tornado and extended coverage insurance until a deed is delivered to me or a for- mal installment contract executed with clause making loss, if any, payable to me and I hereby agree to accept the money realized from said insurance as full compensation for any insurable loss to the building upon said premises and no deduction shall he made from the purchase price on account of said loss. 3. Seller shall pay taxes as follows: All real estate taxes due and payable for the 1985-86 fiscal tax year and all previous years, plus a portion of the 1986-87 fiscal taxes, prorated to date of possession, based on the latest and best known tax assessment and applicable millage rate. 4. You aie to furnish me an abstract of title continued to date of sale showing good and merchantable title,as defined by the Iowa Bar Association Title Standards,to said property free and clear of all liens and encumbrances, not expressly waived or assumed by us. 5. The deed or contract shall be made subject to recorded easements, covenants, building restrictions, and purpose of use and occupancy and municipal zoning ordinance. 6. I am to he given reasonable time for the examination and approval of abstract. In the event valid objections under the Iowa Title Standards are made and exist as a defect in the Seller's title,a reasonable amount shall be retained in escrow to protect the purchaser and the sales transaction shall be otherwise closed. • 7. Possession of said property is to be given on or before December 31,_, 19 86 , and adjustments of interest, rents. insurance or other matter shall be made as of possession date. EXHIBIT "Ar" 8. Included in the property sold herein for the purchase price set forth above are all of the following, but not 'imiled to • any of the following items currently on the premises: lighting, heating, air-conditioning and plumbing fixtures and equipment,all outdoor plants and shrubs,window shades,curtains and drapery rods.venetian blinds,storm windows. storm doors, screens, attached TV antennas and related equipment, attached mirrors, all attached floor coverings (carpet,vinyl,etc.),fireplace screen and grate,water softener(if owned by the seller),sump pumps,mail boxes,attach- ed barbeque grills,weathervane,built-in kitchen appliances and all other fixtures not excepted in this agreement are to be left with as belonging to the building and premises.Owner warrants that all of the above shall be in operating condi- tion and free and clear of all taxes,liens and encumbrances at time of closing unless otherwise specified and exce••"• in an executed purchase agreement.The following fixtures are excluded: _ t. It is agreed by and between the parties hereto that,if the Seller fails to fulfill his part of this agreement after the same h been accepted and all conditions precedent to the performance of the obligations of the parties hereto have been coin plied with, he will pay to the agent the regular commission in full. a. It Buyers fail to fulfill this agreement,the Sellers may forfeit the same as provided by Chapter 656,Code of low.; II payments made hereunder shall be forfeited. If deposited escrow funds are defaulted or forfeited by a pi.•• :ivc purchaser,one-half of the same,but not exceeding the amount of the Broker's fees shall be paid to the Brox:- • full satisfaction of owner's obligation for payment of said fees. b. If Sellers fail to fulfill this agreement,they shall nevertheless pay the regular real estate commission, if any be di. the person entitled,but the Buyers shall have the right to have all their payments made hereunder returned to c. In addition to the foregoing remedies, Buyers and Sellers each shall be entitled to any and all other remedies,or ac- tion at law or in equity,including foreclosure,and the party at fault shall pay costs and attorney fees,and a receiver may be appointed. It is agreed that the periods of redemption after sale on foreclosure may be reduced under the conditions set forth in Sections 628.26 and 628.27, Code of Iowa. 11. If this agreement is not accepted by the owner on w before EDecember 31. 1986 ,it shall become null and void and the first payment shall be returned to us without liability on the part of said agent to either party.If accepted,it shall become a binding contract for the sale and purchase of the above described property. 12. It is understood that no representations made by the agent in the negotiation of this sale are being relied upon unless incorporated herein or endorsed on the back hereof in writing. 1.1. In the event the Sellers hold title to this property as joint tenants with the rights of survivorship,this agreement shall he construed as a severance of said joint tenancy. Furthermore, if the spouse of the Seller is not a titleholder • mediately proceeding this agreement,said spouse shall be presumed to have executed this instrument only for the per- pose of relinquishing all rights of dower, homestead and distributive share, and said spouse's execution of this agree- ment, without more, shall not in any way enlarge or extend the previous interest of said spouse in said property or in the sale proceeds thereof. 14. In the performance of each part of this agreement time shall be the essence of the contract. 15. If this property is an asset of any estate, trust or conservatorship, this agreement shall be subject to court approval, unless declared unnecessary by Buyer's attorney. If necessary, the appropriate fiduciary shall proceed promptly and diligently to bring the matter on for hearing for court approval, and title transfer shall be Court Officer's Deed. In the event said court approval is not obtained by 5:00 p.m. on the day of , 19 , The Buyer may declare this agreement null and void and all payments thereunder shall be returned to the Buyer. 16. This agreement shall be binding upon the successors in interest of the respective parties. 17. The following paragraphs are made a part of this contract: �„ CT1 See attached Addendum. O • • iy .. rJ'l THIS IS A LEGALLY BINDING CONTRACT. IF NOT UNDERSTOO , SEEK COMPETENT ADVICE. Purchaser III. K. Purchaser I hereby accept the above agreement this (a day of j :=C Ai , 19 8U Owner /:14.4.„ J' Owner1,11../. �/•cyleaLf: - w en c—� c ..'. m I cr {addendum to offer dated December 26, 1986 on 130 East Jefferson Street . Iowa City, Iowa. This offer shall he contingent to the following : _ ba-c-4 $2`-.,000_ v]la the for-m of a second riot under the fallowing terms; term of the loan shall he two years • ' i annual payments of S12, 500. 00 principal plus acrue -rest at 3% per annum, the payments shall be made on the _ ' -rsary of 2. Subject to Seller' s attorney preparing a short term contract which will assure this purchase qualifying as a sale in 1986 subject only to the • proval •=•f the title {� I-') c r i T _r'r�r`r—i++.i�/f2k=S-'-is----�- - +3"-YP�� (�,.,3„L.�i....:.� -'��� '^ �x-C....` w"-t • ,J 1� • 3. This cif er is sul3.ject to Buyer' s attorney' s review and acceptance of the contract and terms therein. Purchaser shall have the right to sell the property on contract with written consent of Seller, consent not to be unreasonably w i t he l d. 5. Seller agrees to supply to Buyer' s agent for review and acceptance, within two days of acceptance of this offer the following. A. A 1 1 current leases. B. A current copy of a rental permit for Iowa City. C. Copies of any contractural agreements for management or contractor service. 6. If consent of the current contract holder is necessary, this agreement is subject to such consent and is the Seller' s responsibility to provide the necessary documentation satifactory to Buyer' s attorney. 7. Seller shall provide at closing to:, Buyer the following : A. A current rental permit . B. A11 damage and security deposits. C. A11 leases assigned to Buyer. D. An inventory of all personal property and a bill of sale for same. 8. Subject to Buyers being able to assume the current liability and fire insurance on the building. j q. CLLL — „c� �-L EXHIBIT "B” eta ,-.`-.•- , —r 1.- --- , - - • '- ,-.- • * ) :_1 %ID CT+ ,_ - k:_c_,•cv... ),. a c, , \c, e) ., cy-\ (?-.-- -73:)-0ut-c, 0 ,_• . ,.....t.„4.....„. ,---. c.:-,...,.;-ct._ (..._,2t. ---- --.1c. t.....t....1-(,..._ t ),I / j - 1 .-.._ . ---( 4.:.<, f - 4 .---..0 CD•I'zi -- .. cLA-0- ch.e. cirk-F-6-e.q.. ._Slic_-cLA.,,,r. 0 c -t___-..i-so . ._..._ _k._ 1_.c ._ . (Lk \ 3‘ QCS:_.t.C_C) .-L•NN.S.›I-LL- --5-' iCall-C-- --t-A..."1-Y,.....J • --kr,..l._ •Y-`1"-- (•:.;1 f(s_c_.., _,Q..._Q-.:,c, /\ c.„Lrz. A.,,t__ - 4-, () t/3 , ^y....tk_A.p...i.,,/ cji C A,),to /"...___c‘x...j.,...qs..„ ky_p___ cyst-0 at t_Dy... •k.....k. 01-/Y\--(1)--1-)-P-A-A-0.1 'ajb Cl: c ..-) c--) , c • '' ,:.__)-- ...c..-"' (-,e-- Q-c.:-(... -\ .. .,../Z.... ,1\___Cl_.V.S_A...„ .. .....,... • . \ ' • r'1-4"--C2L-vs-Ct,C:6-"r-i•S—Ji- --i7_ - -P--Ct_ €Vt---eV-A--)—T1 _...- \-e,ba '1°1, cLP-----I) Th'-'4F.il\i k-"r•-raA-%•S.-3.. SUZI-)-2--"N-&--ki '...-/-*---r--A5M-CL, ,, / c a '# • IL a ( , c),.1,, - -- - --- --- _.—rel.]_ _— ..__._-_—__ EIL N0, - _1 7 I IOWA STATE BAR ASSOCIATION • pry Q c t FOR &W r_as a— 6E.,.r u E • _-_ l— Official Form No. 21.1 ,Trade-Marxwiplamrsh7Iowa ,Slats of ,Igen) OF THIS FORM. CONSULT_YOUR.LAWTRR - o��_—i 9+� "i 1987 APR-3 Ali IP 06 N JUlltl E. O'iiEILL ti• ll�.(tc RECORDER • REAL ESTATE CONTRACT—INSTALLMEN gsON Co.. IOWA IT IS AGREED this 31st day of December . 19 1986 . by and betweenMichael E. Lit 3qe and Julie K. Hodge, husband and wife, crs C.:.: r • C-1 1 ' of the County Johnson , State of Bowe, Sellers: and M. K. Younoszai anti Hayat N t Younoszai, husband and wife, as - Cn joint tenants with full rights of surviyrship and not as tenants in common, • 7.71. t of the County of Johnson , State of Iowa, Buyers: —a-' —_ That the Sellers, as in this contract provided, agree to sell to the Buyers, and the Buyers in colt-dere-Non •df the premises, hereby agree with the Sellers to Purchase the following described real estate situated irn..ihe CoZr of Johnson State of Iowa. to-wit: The legal description is set forth Exhibit "A", which is attached hereto and by this reference made a part hereof, together with any easements and servient estates appurtenant thereto, but with such reservations and exceptions of title as may be below stated, and certain personal property if end as may be herein described or if and as an itemized list is at- tached hereto and marked "Exhibit A" all upon the terms and conditions following: I. TOTAL PURCHASE PRICE. the buyer agrees la r•er to, said progeny the total of $ 435,000.00 , dee and Payable ., Sellers' direction Johnson fat DOWN PAYMENT of S 70,000.00 County. Iowa, as lotions: iRECEIPT OF WHICH 13 H ACXNOWLEDGED, and Ib)PALANCE OF PURCHASE PRICE, I 365,000.00---- , ,ueYre xxxxxxxxxx 15,000.00 of the bal Ice of the purchase price ($365,000.00) shall accrue interest at the rate of 9•' from December 31, 1986. $7,500.00 plus accrued interest shall be paid to S- 11- ers on December 31, 1987 and the balance of $7,500.00 plus accrued intere- t shall be payable to the Sellers on December 31, 1988. The remaining balanc'1 of andpurchase price, $350,000.00, shall accrue interest at the rate of 12% rom after December 31, 1986, and shall be payable monthly in the amount of $3,600.00 with the first such monthly payment becoming due and payable on ieb- ruary 1, 1987 and subsequent monthly payments in the same amount on the ls ; day of each and every month thereafter until January 1, 1991, at which tin: the entire unpaid balance of this contract shall become due and payable in full. 2. POSSESSION. Buren. concurrently with dye performance on their part shall be entitled to posteuien of,aid premises on the 31st 86 day of December IS_—: and thereafter so long as they shall perform the obligations of Ih:s contract. If Buyers are taking subject to the right, of lessees and are entitled to rentals Therefrom on and aller date of possession, so indicate by "yes' in the space following Yes 7. TAXIS. Seller, shall pry all 1985-86 real estate taxes before the same become delin- quent, and in addition, shall pay the September, 1987 installment (1st inslall- ment of the 1986-87 fiscal year real estate taxes) before the same become delinquent and any unpaid Ifse1 thereon payable in prior Year,. Buyers shall pay any faxes not anymed by Sellers and all subsequent Maas bele,e same become delinquent. Whoever m y be esp°nnble lar the Darman of said lases e d�th�e,ppec,el a jpi V .,h a shall furnish fo Lha other adios evidence 1 h leets nal later then JuIY IS e/each Yaer,M1PW�b1ifA[afOQiGIG:r� O payment of [Deccirde toe yourself, it that formula is Illi• if Buyers are rurchesinq a lot with newly brill improvements.) 4. SPECIAL ASSESSMENTS. Seller, shell pay the special assessments against this property: (Strike out either (al or(b) below.) (b)Which are a lint,hereon a,of December 126, 1986 (Cl Including all sewage disposal assessments for overage)charge heretofore d by any municipality havingjurisdiction as of date of I possession. Buyers, except as above stated, shall pay all wbseguent sxcial assessments and charges,before they become delinquent. S. MORTGAGE. Any mortgage or encumbrance of a similar nature against the said property shall be timely paid by Sellers so es not to prejudice the Su exult herein. Should Sellers fail 1vers c o nein interest may per any tuck wets in default and shall hcredit this contract ger such sterna so pad. MORTGAGE BY SELLERS. Seller,, mein successor, .n interest or assign, may. and hereby reserve the right to at any lime mortgage their right, title or interest in such errm;ses or to renew or extend any existing mortgage for am amount not exceeding 75oen e. chase Price herein provided. The interest rale and amo,t;mtion rhereol shall be no more onerous than the installment reourementsh of this contd ract, Buyers thelance of our.rrpresslr foment to such a moraoaae and agree to enecule and deliver all necessary capers to aid Sellers in securing such a mortgage which shall be Prier, end Ipt'amouello In any of Buyer,' then rights m said properly. DEED FOR BUYERS SUBJECT TO MORTGAGE. If tuners have educed the balance of This centred In bel to suchtmortgage ay ex'shnq mortgage balance on said premises, thee may at their option.assume and agree to Pay said mortgage according to its terms, end reducejecor shell receive deed to said nremi,e,:or Seller,, at their option, any time before Buyers have made such a mortgage commitment, may Mlle. or in Pan off such mortgage. ALLOCATED PAYMENTS. Buyers. in the event of acquiring this Property tram an equity holder instead of a holder of the lee mortgage again,, said premises. reserve Ike right. it reasonably necessary for their protection to divide or allocate the payments to the ,etereited Parties as their interests may appear. SELLERS AS TRUSTEES. Sellers agree that they will collect no money hereunder in excess of the emevnl of the nna,d balance under the terms o! This contract less the total amount of the encumbrance on the interest of Sellers or their asdgns in mid real estate; end if Sellers shalhereafter coned r receive any moneys hereunder beyond such amount. they shall be considered and held as reflecting and receiving said money as the agent and trustee of Ike Buyers for the use and benefit of the layers. L. INSURANCE. Except as aymbe otherwise nj luded in the lest entente of paagreeth Ilk) above. Buyers as and from said dale of possession, shall con. nellt Ieee .n force. insurance, o be prepaid by Buyers (without notice or demand asualties and ally , as Seller mar reasonably 'eouire on all buildings and improvements. now onor hereafter against placeds ony laid fpremi esornado u and nd Jany Personal her hazards. [property which may be the wbirrt of Ih:s centrad. in companies to be reasonably enprooed by Sellers in an amount not less than the full insurable vstue of such improve• melt and personal MepetIY tmr nal le„than the nen. dTheir .eteresIs m Y DEPOSIT price herein whichever gun RIDERS Iter with LLE 'n ereshe Drth r to Sellers ked lumen of the,umc herein m appear. nUa SHA t n suchTca DEy los SUCH POnceY WIePROPER WITH SELLERS for the the set securi� f I mentioned. In theevent of anyv or the payment of ' lass if the maceee, fr eden°ar l not. the, someother casualtylosn, the insurance proceed,0fsuch may be usedltoded the tin aa of Suers to ehstand raper the 4, lc__�: payment of the obligations herein.'nnother reasonable application of tach ImMs shell be mode;but in any event such proceed,shall as,scar. 1• ..."'"0—PROPERTY. Buyers shall take good care of this Property; shall keen the buildings and other improvement, now or hereetter'placed on the ret and reasonable repair end shalt not injure. destroy or remove the same during the life of this ontract, levers shall not make any'material nes without the written consent of the Sellers. Buyers shall not use or permit said premises to be used for any illegal purpose. nerhanies lien shall he imposed noon or foreclosed against the real estate described herein. . • NT RT SELLERS, If Buyers lel to nay such lanes, special assessments and insurance and effect necessary repairs, a, above agreed, Sellers gl°' pay such taxes, srecial as sessments. insurance and make necessary repairs. and all sums so advanced shall be due and payable on demand or 'ed may, al the election ofSellers. be added to Ike principal amount due hereunder and so secured. (for Buyers' rights In make advancements. e.) EXHIBITQ "C" _ ry The low;Sint;ear AMtlocjeti0 ---- -'''11----f191'ik' • •• -' — —' R A '--- -- — ,Eek 'Y 21.1 REAL ESTATE CONTRACT 10. JOINT TENANCY IN PROCEEDS AND SECUEITY RICHES IN REAL ESTATE. II nod only if, the Salle. i mediel•Iy pr•tedinq this sale, hold the title to the above described property in joint tenancy, and such joint tenancy has not laser been destroyed by operation of low or by acts of the Sellers, this sale shell • net Centlilule such destruction and the proceeds of this contract. end any continuing and/or recaptured rights of Sellers i aid real a, shall be ted Continue in Sellers as joint tenant with rights of survivorship end not as teeanls in common:and Buyout, in The event of the d•elh of one of tech joint tenants,tQ tea to pay , s balance of the proceed,of Phi,contract to the surviving Seller (or Sellars) end to ¢coops deed solely from him or them consistent with peraorapls 11 below unless and a ceps This paragraph is stricken front this agreement. • 101/2. "SELLERS.'. Spousa. if not titleholder immediately presumed euted this in,lromeet *nit for lb. .m a of taliy pe .di/o this ,mp shell with Pre mad to1have P°' nod Poll all f this of dare..it out lmor end ll distributive ua share and/or in presumption. Por inn an •attar.Sall] ted lb lore•end lM u 1 the olid S 11 In Ip- *rotted portion o1 1pia tended,wit haul mare,shall nal rebut t......Idtoiter inany way eo s Iorb ,eland the Prevsw, i use tuCA spout• in said wep- •rry, or sw the tale proceeds, nor bird sucF,Douse accept a• •loressid, to the farms and Provisions of this tonlract, 11. TIME IS OF THE ESSENCE of this Agreement, Failure to promptly *met rights of Sellers herein shell not, h , be a waiver of loch tights or • wmvtr of any n.nl.co or subsequent default. I2. EXCEPTIONS TO WARRANTIES OP TITLE. The worroo.ie. of fill• in any Deed made pur,oant to this contract IS. Paragraph 11) shall be ilhout resematien or ouelilicelien EXCEPT: (e) Zoning ordinances: (b) Such restrictive covenenh as may be •horn of record: (el Easamente of record, if •ey: Ids A Dented by paragraph, I. 7. 3 and a of 0,;,. conlretl: (e) Sellers shall give Special Werranfy e• to Aha period •Iter•egailebta title passes to Boyers: It) Spouse it not e titleholder. need not join lin any warranties of the deed unless otherwise stipulated: (q) (Mined reservations of record?) (h) (liens 7) (Easements not recorded7) (Inlere,lt of other parties?) (Lessees?) 11. DEED AND ABSTRACT. BILL OP SALE. If all said sums of money and interest are paid to Sellers during the life of this centred.end ell other agr.m•nn for performance be Buyers have been complied with.Sellers will e.ecute end deliver to Euven a XXXXXXXXXXXWerranly Dead conveying said Dre ' in fee imply(00500.,to and in conformity with This contract:and Sellers will at This lime deliver to Buyers an abstract shoring mercnanta ble title. .n conlq'Pi[yy with I this contract. Such abstract shall begin with the government patent (unless pur,uenf to the low,Slate Bar Association title standard,there lesserregdrrelhent as to period of.rb•tr•ct.ngl to raid premises and shall show Jule thereto in Sellers as of the date or Ohs contract: or at of such earlier date 'tend as de. e in Ike nets sentence. thin contract supersedes the previous written offer of Buyers to buy the above described property which was eccepled by_Sellar,on Itis -- day ..day of December le 86• Sellers•hell else pay the coal of any ebstrecliny due to any act or change in the personal aflairt ef.Salter,reryUlt,rq in • j change of title by operation of low or otherwise. If any personal property it a ped of this agreement, then upon due performance by Buyers,della. shell execute and deliver a Rill of Sale consistent with the term•of this contract. Sellers shell pay ell lases en any such personal property payable in 19_C_;end all Ws there• on payable prior thereto. J\ RA 14. APPROVAL OP ABSTRACT. Buyers have rot e*emined the abstract of fills to this Property end such abstract is not' accepted. 1S.1. FORFEITURE. If Buyers(a) !nil to meta She payments eforeseid,or any peel thereof. es tame become due:or(b) fail to pay tfl7j'bees or spatial esters enll or charges r any pert thereof. levied pen said property, or d against it. by any faring body before any of such iterr.er b.tome delipaue l: or (c) fail to keep the property insured: or Id) fail to Inn. it i reasonable repaires herein r red: orlel fail to perform any of the`agreementr'e, heroin made or required: then sellers, naddition to any end ell other legal and equitable remedies which they may have, et their option. may proceed to,(q�sil and cancel this contract es provided by law (Chapter 656 Code of towel Upon completion of such forfeiture Buyers shall have no right of reclamation or compensa- tion for money paid, or improvements made: but such payments and/or improvements if any shell be retained and kept by Sellers as compensation for the use Of.said properly, and/or as liquidated damages for breach of this contract; end upon complefioe of such forfeiture,jf the Buyers, or any other parson or persons shell be in noste.sion of said real estate or any pert thereof. such party or parties in s v shell at once peacefully r a therefrom, or tattoo to do so may be treated at tenants holding over, unlawfully after the expiration of a lease,and mayaccordingly be ousted and removedas such as provided by law. 15.2. FORECLOSURE. If Buyers fail. in any one or m of the specified ways le comply with this contract, as in (el. (b), (c). Id) or (e) of numbered pereoreeh 15.1 Above provided. Sellers may upon thirty 1101 days written notice of intention to accelerate the payment of The entire be anteduring which thirty days ruck default or defaults ere not removed. declare the entire balance hereunder immediately due and payable: and thereafter of the potion of the Sellers this contrec, may then be foreclosed in saute end a receiver may be eppoinled to late charge of said premises end collect the rents end profits thereof to be applied as mey be directed by the Court. 16. ATTORNEY'S FEES. In case of any action. or in any proceedings in any Court to celleds payable or secured herein. or to protect the It.. or title herein of Sellers, orany other case permitted by law in which attorney's fees may be collected rams from Buyers,or imposed upon them,or upon the above described property, Buyers agree to pay reasonable attorneys' fees. 17. INTEREST ON DELINQUENT AMOUNTS. Either party will pay interest et the highest legal contract rate applicable to a natural person to lite other an all amounts herein as and after they become delinquent,and/or en cash reasonably edvenced by either party Punuent to the terms of this centred,es protective disburse- men, 1E. ASSIGNMENT. In case of the assignment of this Contract by either of the pertles, prompt notice shall be given to the other parties. who shall at the time of such nonce be furnished with a duplicate of such astignment by such assignor. Any such assignment shall not terminate the liability of the assignor to perform, unless a specific relent. in writing is given and signed be the other party to this Contract. 19. PERSONAL PROPERTY. If this contract includes the sale of any personal property, then in the event of the forfeiture or foreclosure of this contract, such personalty shall be considered indivisible with the real estate above described: and any such termination of Buyert' rights in said real estate shall concurrently coerp a as the lerfeilu a or foreclosure hereof against all such personal properly, 70. CONSTRUCTION. Words end phrases herein. including eckeowledgments hereof, shall be construed as in the singular or plural number, and as masculine, lemrnine or neuter gender,according to the contest. See perngerph 101/7.above. for construction of the word "Sellers.' 21. SPEc1ALRO PVISIONS. See Exhibit "A" for additional terms, conditions and provisions to this coin tract. Emevred r.r i_ ZVf. I' ._ _ ��i�: L 07/Vbl t? 4,4Mel E. Hod e� . • . aouno'Pai LI "# �, YLC t_ ! /S / Plow*. OS _ P .. le J1ie K. Hodg ' SELLERS r p� BUYERS °„' mirk 55.00•,•a•. ler. Sellers'Address Buyers' Address ;;;.s STATE OF IOWA JOHNSON COUNTY, ,,: wCo`eir on chit 31st day of December , A. D. 1986, before me, the undersigned. a Notary Public in and ler said State, personally appe.red Michael E. Hodge and Julie K. Hodge, husband and wife. to me known ,o be the ,dentirel persona named in end who eterurrd the within end feregain. ins Al, ant, end ecknowledge• that they eteculed the lame as their voluntary act ped dent. lifidtia/A/(fr r 11O• fal% MR BORMMHOUPRTS • August 31,1989 N. nwa .ry Public in and ler said State a1 927 Pm 271 I I i o . o r ir a 'o • } °o o• O 0 o e O ac •oc n, - I'C v I c O } O7 2 e $ g ti kA I� .° r] i V Z et 0ac . L w. W .� = H C) a T V C Y .5 g N O +a 0 UJvs C= o Y < W • 0 o a a) ' a n • ..� o oval ' Ce • • • a O I 0 1` .. -. w m m • < o ._ -o ac . _ . ' . FOR THE LEGAL EFFECT OF THE USE it .. OF THIS FORM. CONSULT YOUR LAWYER • STATE OF IOWA, JOHNSON COUNTY, ss: On this 31st day of December , A. D. 19 86 , before me, the undersigned, a Notary Public in and for said County and State, personally appeared M. K . Younoszai and Hayat Younoszai, husband and wife, - NOTARIAL CE-At. to me known to be the identical persons named in and who ex—lied the with an• ..:•<, -• instrument, to which ...'" ...," thistis attached, and acknowledged that they executed th- . - .- h;i vol - " y;3Xnd deed ,. • /.0, 40,. , Aler,"•7 or- al e A 1 gi ./*X°• /di .40. .... No .0"u• ic in and 'or said County .nd State %..,.1 IOWA STATE BAR ASSOCIATION VOL 82 eau 275 Official Forum No. 11 (TrafboAlorli Roolotorod. Nolo of Iowa. 1967) (Section 5 11.39. Code of lows,' Current January,1 981 • w C-1 ' elo CD C) 1-,1 71 •>.:74 C'D •C")-••,.: " ,;.• C -.- - .".; 3- .. —.1 •. • • • • • • . - - . . - • THIS EXHIBIT "A" REPRESENTS AN ADDENDIRi TO A REAL ESTATE CONTRACT - INSTALLMENTS RY AND BETWEEN MICHAEL E. HODGE. AND JULIE K. HODGE, HUSBAND AND WIFE, SELLERS, AND M. K. YOIINOSZAI, BUYER, WHICH CONTRACT IS DATED DECEMBER 31, 1986: LEGAL DESCRIPTION. Sellers convey all of the following described real estate by this installment real estate contract: Commencing at the Southeast corner of Lot 8, thence Westerly along the Southerly line of Lot 8 a distance of 55 feet; thence Northerly parallel with the Easterly line of said Lot 8 a distance of 101.52 feet; thence Easterly parallel with the Southerly line of said Lot 8 to the Easterly line of said Lot 8; thence Southerly to the Southeasterly corner of said Lot 8, all in Block 78 of the Original Town of Iowa City, Iowa. Sellers convey an undivided one-half interest in and to the "Court Yard", tj the legal description of which is as follows: s•�7 rn Commencing at the Southeast corner of Lot 8; thence Westerly n ��j'; along the South line of said Lot 8 a distance of 55 feet to the point of beginning; thence Westerly along said South • °^ line of Lot 8 to the Southwest corner of said Lot 8; thence -- Northerly along the West line of said Lot 8 a distance of ` 101.52 feet; thence Easterly parallel to the Southerly line 5;-, of said Lot 8 a distance of 25.2 feet; thence Southerly to the point of beginning; ,y AND the South 101.52 feet of the East Half of Lot 7; all in Block 78 of the Original Town of Iowa City, Iowa. 22. "Court Yard" Covenants. It is understood and agreed that the Sellers shall own an undivided one-half interest in and to the "Court Yard" above described and that the Buyer shall own an undivided one-half interest in and to the "Court Yard" above described. Neither party shall construct any nhject of any kind and nature whatsoever upon the "Court Yard" above described without the written consent of the other party. 23. Buyer shall not sell, assign, transfer or convey any interest in the above described property or in and to this contract, without first securing the written consent of the Sellers, which consent shall not he unreasonably withheld. In the event of a violation of this provision, the entire unpaid balance of this contract shall become immediately due and payable in full. Nothing herein shall preclude either party from assigning their interest herein for security purposes. 71 927 ra,I 276 MANAGEMENT AGREEMENT This agreement , made and entered into this ( day of , 19 r7 , by and between Michael Hodge Constrt o Co pany , and hereinafter referred to as "Manager" and Dr . M . K . Younoszai , hereinafter referred,rto as "Owner . " c+ o -`.t-; rn • - cm, . - N cn Witnesseth : • 7:7 WHEREAS , Owner is the owner of residential rental 5'mitsT (hereinafter referred to as "the Units" ) located th Iowa City-Coralville area and described as follows : 27 Unit Apartment Building located at 130 E. Jefferson , Iowa City , IA and , WHEREAS , Manager wishes to assume responsibility for the day-to-day operations of the Owner ' s Units and to provide professional management of the Units in the best interests of Owner . WHEREAS , the purpose of this agreement is to set forth the terms and conditions with respect to the maintenance and management of the Units . NOW THEREFORE , for good and valuable consideration and mutual promises contained herein , the parties agree as follows : 10. Employment--Manager is hereby given the exclusive right to manage and maintain the Units in accordance with this agreement to the exclusion of others , and Manager hereby accepts said responsibility . 2 . Purpose of this agreement--The purpose of this agreement is to relieve Owner of handling the details of managing the Units and for the purpose of providing efficient , competent , professional , comprehensive and con- tinuous management and maintenance for the Units . 3 . Term of Agreement--This agreement shall irrevo- cably be in force for two ( 2 ) full years following date of execution ; and shall continue in force thereafter until notice of termination . Notice of termination must be submitted in writing and sent by registered mail at least thirty (30) days prior to date of termination . Should any incident occur which constitutes a breach of contract by Management , Owner will notify Manage- ment in writing , and Management will have fifteen ( 15) days to correct , or contract shall be null and void . EXHIBIT "D" %JU CPI (2) ZE C. CD cI Ql D ,c- 4 . Duties of Manager--Subject to the provisions of paragraph 6 below , the duties and responsibilities of Manager in connection with the management of the above de- scribed property are as follows : ( 1 ) Collection of revenue--Manager shall take all reasonable steps to collect and enforce the collection of all rentals and other charges due Owner from tenants of the above-described Units in accordance with the terms of their tenancies and in accordance with the wishes of the Owner . ( 2) Expenses and Mortgages--From gross revenues collected from tenants , Manager shall : ( a) pay all operating expenses and other such expenses as may be authorized by Owner , and ( b) pay to any lender designated by Owner all sums that may become due on loans affecting the property . (3) Taxes--Manager shall pay property tax escrow to Owner on a monthly basis . Owner shall transfer sufficient monies to Apartment checking account to pay property taxes twice per year . Manager shall notify Owner of amount needed and due date of payment . ( 4) Inspection and Repairs--Manager shall do everything reasonably necessary for the proper management of the property , including periodic inspections , supervision of maintenance , and arranging for such improvements , alterations , and repairs as may be required by Owner . No improvements costing more than Two Hundred Dollars( $200 . 00) shall be made by Manager without the prior authorization of the Owner . In case of emergency that requires immediate repairs or alterations , if Owner is not readily available for consultation , Manager shall use its own discretion regarding same . (5) Negotiation of Leases--Manager shall have the authority and exclusive right to negotiate leases and month-to-month tenancies with both existing and prospective tenants on terms approved by Owner . All leases shall be signed by Owner , unless the attached Power of Attorney form is executed , in which case said lease shall be signed by Manager on behalf of Owner . to (3) cn C3 n IVa —t. . - CD ( 6 ) Employees--Manager shall have the authority to hire , supervise , and terminate on behalf of the Owner , all independent contractors and property employees , if any , reasonably required in the operation of such property , but all such property employees are employees of the Owner , and not employees of Manager . ( 7 ) Tenants--Manager shall handle all tenant requests and negotiations that may arise from time to time . (8) Legal Assistance--Inasmuch as Manager is not authorized to practice law, where legal assistance is needed for such matters as enforcing rent collection or tenant eviction , such action shall be through counsel designated or approved by Owner . The expenses of counsel shall be borne • by the Owner . ( 9) Records--Manager shall maintain accurate records of all monies received and disbursed in connection with its management of the property when required , and such records shall be open for inspection by Owner at all reasonable times . Manager shall also render to Owner a monthly statement showing all receipts and disbursements , together with supporting vouchers if requested by Owner . ( 10) Payments to Owner--After Manager deducts all authorized expenses , reserves , management fees , and other monies advanced by Manager that are related to the operation and management of the property from the funds collected for the Owner ' s account , Manager shall deposit the net amount of such funds to a drawing account for Owner in the bank of his choice , or make payments directly to Owner as he may other— wise elect in writing . 5 . Indemnification of Manager--Except for willful misconduct of Manager , Owner agrees to indemnify Manager against all costs , expenses , attorney ' s fees , suits , liabilities and damages from or connected with management of the property by Manager or the performance or exercise of any of the duties , obligations , or powers herein or hereafter granted to Manager . 6 . Responsibilities of Owner--In consideration of the property management services to be rendered by Manager under this agreement , Owner shall : • • (4) rn• o__ 7- an fr"I CD 7.71 z- -4 ( 1 ) Reimbursement of Advances by Manager-Reimburse Manager , on demand , to the full extent of all monies advanced by Manager for the Owner in carrying out the purpose of this agreement ; it is understood that Manager is not obligated to make such advances of money . ( 2) Payment of Management Fees--Manager shall perform all of the services required of it herein at no cost to itself . As compensation for its management services , Manager shall be paid based upon the following schedule : (a) Rental Commisssion--For each unit leased by Manager on behalf of Owner , Manager shall be paid the sum of seven percent (7%) of the gross monthly rental . THIS AGREEMENT is signed and dated on the day and date written in above . e JA0-7_ By 7M"' anager • 117Zo. By /11. -111)W7r-- Owner Owner — • THE IOWA STATE OAR ASSOCIATION FOR 111E LEGAL EFFECT OF THE USE 0111cIe1 Form No.IOU OF THIS FORM,CONSULT YOUR LAWYER 1'= *C"—} j'1 C N— Q = SPACE ABOVE THIS ONE 'i: FOR RECORDER -;� ," WARRANTY DEED For the consideration of One ($1.00) Dollar($ and other valuable consideration, Julie K. Elodge and Michael E. Hodge, wire and husband do hret?y Convey to M. K. Younoszai and Ilayat Younoszai, husband and wife, as joint tenantswith full rights of survivorship and not as tenants in common the following described real estate in Johnson County, Iowa: Commencing at the Southeast corner of Lot 8, thence westerly along the southerly line of Lot 8 a distance of 55 feet; thence northerly parallel with the easterly line of said Lot 8 a distance of 101.52 feet; thence easterly parallel with the southerly line of said Lot 8 to the easterly line of said Lot 8; thence southerly to the southeasterly corner of said Lot 8, all in Block 78 of the Original Town of Iowa City, Iowa, and an undivided one-half interest in and to the "Court Yard", the legal description of which is as follows: Commencing at the southeast corner of Lot 8; thence westerly along the south line of said Lot 8 a distance of 55 feet to the point of beginning; thence westerly along said south line of Lot 8 to the southwest corner of said Lot 8; thence northerly along the west line of said Lot 8 a distance of 101.52 feet; thence easterly parallel to the southerly line of said Lot 8 a distance of 25.2 feet; thence southerly to the point of beginning, and the south 101.52 feet of the East Half of Lot 7; all in Block 78, Original Town of Iowa City, Iowa. This deed is given in fulfillment of a Real Estate Contract dated December 31, 1986 and recorded April 3, 1987, in Book 927, Page 273, Records of Johnson County, Iowa. Grantors do Hereby Covenant with grantees, and successors in interest, that grantors hold the real estate by title in fee simple; that they have good and lawful authority to sell and convey the real estate;that the real estate is Free and Clear of all Liens and Encumbrances except as may be above stated; and grantors Covenant to Warrant and Defend the real estate against the lawful claims of all persons except as may be above stated. Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and to the real estate. Words and phrases herein, including acknowledgement hereof, shall be construed as in the singular or plural number,and as masculine or feminine gender, according to the context. Iowa January , 1991 STATE OF DATED: Johnson ss: COUNTY, On this day of January ✓ 19 y 1 ,before me,the undersigned,a Notary Public Julie K. Hodge inndd fpr said Stele personal appeared (Grantor) Julie K. lodge and Michael E. (lodge, husband and wife to me known to be the identical persons named in and Michael E E. Elodge (Grantor) who executed the foregoing instrument and acknow- ledged that they executed the same as their voluntary act and deed. • (Grantor) Notary Public (Tills Iorm of acknowledgement for individual grantor(s)only) EXHIBIT "E" (Grantor) -- - ... - - - -- - -- I 1 to 1 "71 • '7'1 Z`Z rn• •• ENGINEERING REPORT Prepared by NNW, Inc. Noel W. Willis, P.E. II I I I I I I I 1 . EXHIBIT "F" /Ds . C % BURKLEY APARTMENT BUILDING <. * ,,..i STRUCTURAL APPRAISAL +U ' r.-` cr 4 •C PURPOSE OF REPORT co The purpose of this report is to render a judgment about the structural condition of the Burkley Apartment Building, with particular attention given to whether there are any defects which may cause imminent or eventual collapse, and what should be done to remedy these defects. It should be noted that this report, in no way, makes a general judgment of how the structure meets the Building Code of Iowa City, how well it fulfills its intended function, or whether it is or will continue to be a viable economic entity. It addresses the question of structural integrity, and it does so in the abstract. HI STD RY OF THE BUILDING Since the building is about 130 years old, and has been placed on the National Historic Register, a brief recitation of its history is in order. The building was constructed in 1851 by Ferdinand Haberstroh and used as the Park House Hotel. The building was designated and used to house state legislators and photographs dating back to 1865 do exist. The building was given to the Sisters of Mercy in 1860 and used as a female seminary until 1909 . During this time period, the building carried a sign which indicated that it was a "seminary for the education of young females" - 2 - J% and it was used as a non-denominational teaching instiitutfQn for the training of elementary teachers . =: In 1909 Albert Burkley purchased the building and used it as a university dormitory until 1918 . In 1918 the building was remodeled and according to the Will of Albert Burkley became known as the "Burkley Imperial Hotel" . Albert Burkley died in the 1930 ' s and the building has been used as an apartment house for a number of years. In the early 1930 ' s two 3 - story sunporch like additions measuring 9 ' x 16 ' were added on the west side of the building. In December of 1978 the building was placed on the National Registry of Historic Places. DESCRIPTION OF THE BUILDING The original building is 42 feet wide, 92 feet long, and 4 stories in height. The ground floor is situated about 3 feet above the level of the natural ground, and a full cellar, or basement, about 8 feet in depth runs under the entire building. Because of the age of the building, (circa 1850 ) the type of construction is that commonly used at that time, namely, bearing wall. The date of original construction is well before the time of rolled structural shapes used for beams and columns, and an engineering understanding of the use of reinforced concrete, thus one would not expect to see the structural frame construction in common use for the past 70 years. Bearing wall construction is characterized in buildings of this size and use, by two outside bearing or supporting walls, and two interior walls. - 3 - In the case of commercial or institutional buildings, the, inside bearing wall also formed the corridors . The -:bearing `77 walls on the outside of the building were usually br6 ck above grade, and often rested on uncoursed ( irregular . sized and shaped) rubble stone walls. The stone walls were3..heid; together with thick applications of sand and lime, which coagulated together into a loose mortar. Since the mortar was not usually exposed to the weather, it was not of the permanent consistency required for exterior brick work. At some point between the natural ground and the building ' s first floor, a 3 course, or 13" brick wall was begun. This was carried up for two floors, and if the building extended higher, (which was rare) the bearing wall was reduced to 2 courses, or 9" for the rest of the way. This is the way that the Burkley exterior bearing walls are built. The interior bearing wall on the east side of the corridor is exposed at some points, and it appears to be a brick wall of similar construction. The composition of the west corridor wall is indeterminate, but logic would indicate it to be of similar construction to the other walls. The framing system for all of the floors seems to be 2" x 10" timbers spaced at intervals of 16 to 19 inches. The walls are so arranged as to make the span of the floor joists 16 ' over the apartment areas and 10 feet over the corridor. The upper floor has a Mansard configuration, which means that the sides and the rafters have a slight slope to them. - d _ 4,0 _ 17:n rn This conserves ceiling space, and makes the upper sto � - a building more efficient. This configuration is similar"' to that of the former Odd Fellows ' Building at the nFrthw.est corner of College and Dubuque Street, which buildinglwas demolished a few years ago to make way for Plaza Centre One. A point to be considered in this building is that a system of support in the basement under the west corridor bearing wall is missing. Some of what appears to be an original post and girder system is present in the front part of the building, but it is in poor condition, and has been bypassed with temporary supports and floor-jacks. At any rate, there is no overt reason to believe that a masonry bearing wall ever existed under the west corridor wall. Engaging in conjecture, one might believe that as the timber post and girder system fell into disrepair through rot and deterioration, it failed as a support system and was taken out. This had the effect of increasing the span of the floor joists in that side of the building from 16' to 20+ feet. The floor joists are adequate to hold a 16 ' span of apartment loading, but not over 20 ' span with a concentrated bearing wall load. That span increase, in addition to the load of the corridor bearing wall above loaded the floor joists beyond their capacity, and accounts for the many cracked and broken members which are still in the first floor. The floor is now supported by 3 rows of timber shoring which appears to be 10 to 15 years old. This is not a permanent solution to this problem, and the floor - 5 - system should be replaced in much of the west half on thea rn first floor. f The writer has inspected hundreds of commercial and ¢-n5ti� tutional buildings, and finds this one to be unique. "- -It is c . — a rare example of bearing wall construction in thisc the country. Many of the Central Business District buildings are 2 or 3 story bearing wall buildings, but they are 17 to 20 feet wide, and they are not free standing as this one is, but have party walls and other buildings along side of them. This building is quite large, and tall for its type, and it depends entirely upon its weight for its stability, and to resist lateral loads. Exhibit A shows a typical crossection of the structure. CONDITION OF THE BUILDING Mint condition is not a reasonable expectation, given a building that is 130 years old, has been used for many different puposes, and has been owned by a number of different individuals or groups; and of course the building is not in mint condition. All of it was inspected, and visible defects recorded on work sheets, which• were then given subsequent review and consideration. A number of "lapse of time" defects were found such as rotting window frames, gutter and downspout damage and defects, need for masonry pointing, plastering problems, sagging stair horses, and springiness in the floors which either can be corrected, or are not especially significant to the short and long term integrity of the structural system and these are not emphasized further. - 6 - • However, comprehensive review of the field notes shows that there are three major areas of concern about the building. These are : rz �� r N I . The basement support system for the west corridor bearing wall is missing over a large area of the building. This is shown on Exhibit B. 2. Tha natural mortar which knits the stones together in.,the basement wall bearing system has deteriorated to the point where it is non-cohesive, and depends upon the internal friction of the sand to keep the wall acting as a unit. This is shown on Exhibit C . 3 . The building shows evidence of extensive differential settlement. This is noted on Exhibit D . MISSING SUPPORT SYSTEMS Exhibit A shows that a timber girder and post support system has been hypothesized to be the original support system for the original building. This hypothesis is drawn because there is evidence of such a system in the front of the building even though it has deteriorated so badly as to have become ineffective and have been bypassed with a temporary support system of floor jacks. In the rear half of the building, there is no evidence of the support system for the west corridor wall . One might speculate that the original system deteriorated, and was removed without being replaced. The removal of the support lengthened the joist span and added the bearing wall load which caused many of the floor joists to crack, break, and sag. At this point, the folly of the support removal and non-replacement became apparent, and the owners were forced to install 3 lines of temporary timber shoring to prevent collapse. • - 7 - There are temporary sypport systems all through the west side of the basement supporting the first floor. •ire c..7% BASEMENT WALL MORTAR c.., •111r, , The bearing walls throughout the basement area are a4out ry 18" thick and are made up of native limestone of rancnI.,� F. sizes and shapes. The old-fashioned mortar used for tiffs ' kind of wall-building was a mixture of sand and lime. This natural mortar filled up the crevices between the stone, but did not assume the permanent set and the hardened finish that beach sand and mortar cement make. Since the structural in- tegrity of the building is a function of the integrity of the bearing walls, it is necessary that the mortar be stabilized into a permanent, cohesive matrix. DIFFERENTIAL SETTLEMENT Differential settlement occurs when one part of the soil under a foundation settles or consolidates under load at a rate different from other parts. When this occurs, one will see evidence of sloping floors, out-of-square window and door frames, and diagonal cracking in connecting partition walls. There will also be vertical cracking in the actual bearing wall itself as well as sloping or irregular course lines in masonry work. If the building is an old one, as this one is, there will be evidence of filled cracks, some of which may have reopened many times. Evidence of differential settlement abounds throughout the building. There is evidence of wall cracking on every exterior wall, and this cracking is particularly prevalent between the - 8 - window heads. The cracks are particularly evident on the gable ends (non-bearing) of the building with the most { c- serious one appearing on the front of the building }3etwe&i; the windows of the second and third floor on the extreme eastern edge of the building. These cracks are oper,. anc -_ the wall on one side of the crack has moved out away'""from the other side. Gable end walls are especially vulnerable to this kind of distress because they have only their own weight, and not the weight of the floors to brace and sup- port them. The problem with differential settlement is that it puts inordinate shears and pressures into parts of the building which have not been designed to withstand those forces. An example of this effect is the serious bulge in the north- east corner of the building between the first and second floor. The rear wall (north gable end) has settled in the middle, as has the corridor bearing wall at the connection between the two walls. This has pulled the floor of the apartment in the northeast corner downward so that it slopes about 2 or 3" out of horizontal toward the center of the building. The sloping of the floor joists introduced a twist or rotation into the exterior wall causing it to bulge. This bulge has been repaired by rebuilding the affected portion of the north wall with Chicago used brick, and bolting channels into the east wall to help stabilize the corner. The repair seems to be effective, given that no more settlement occurs. - 9 - It is interesting to note that the general condition of the exterior walls of this building is not nearly as good as the condition of the walls of either Old Brick or the Congregational Church, both of which are of similar vintage and con4truc on, 777and one should give some careful consideration why the coni dition is poorer. n1 The first area of consideration should be of the suboil, Car the bearing material on which the building rests. Working drawings of the new Physics Building were reviewed at the University Architect ' s office, and the soil borings taken for that building, one of which is only 175 feet from the Burkley Apartments, show that there is a layer of wind- blown silt (which is called Loess) immediately beneath the surface of the ground and that this loess, which overtops various layers of sand is 22' thick. This layer of loess is fairly typical of the downtown of Iowa City, there being layers of similar or more extensive depths under the Bremers Building, Plaza Centre One, Old Capitol Mall, and the new . First Federal Savings and Loan Building, to name a few. The foundations of the Burkley Apartments extend 5 feet into this laver of loess, leaving about 17 feet of the material below them. This soil is touchy foundation material . It is elastic, it is strong when dry, and weak when wet, and is known for inducing settlements. In this day, an engineer will put - 10 - spread footings on it only when the loads are light, in the order of 1500= per square foot, and where some settlement, in the order of 1" , can be tolerated because of the flex- ibility of the building frame. Some material will settle or consolidate all that it is going to during construction, and then remain stable from thenceforth on, but not loess. Loess will continue to foster settlement for long perods r� of time . Soil settlements usually occur for 3 reasons. First,.: the soil consolidates, or the ratio of the voids to the in soil lessens. When this happens, the soil occupies less volume, and settlement occurs. Next, some soils such as loess have a high capilliarity. The water in the soil pores moves up and down, and as it moves down, the soil loses the bearing capacity available to it from the buoyancy of the capillary water, and settlement occurs . Third, the soil becomes saturated and loses its strength, and is displaced laterally, allowing substantial settlement. Some materials such as sand have the same bearing strength either wet or dry. Loess, however, will stand vertically when dry and is quite strong, but is weak when wet. Any consolidation which was going to take place in the subsoil under this building has done so many, many years ago , so this element is not a concern regarding future settlement. Settle- ments due to buoyancy of pore water should not be of much consequence either. Thus, it appears that danger from - 11 - future settlement will come from the subsoil becoming saturated. The groundwater table was 30 feet below the bottom of the footings at the time the new Physics Building was constructed, so saturation from the ground water table is not likely. The real problem is that the subsoil is loaded to a level of 4000* per square foot, or 2-2/3 times what would be considered an allowable pressure, and .here' are all sorts of random and ordinary ways that the fbundaion material could become soaked, lose bearing strength�_-ind zce • c: large settlements, and cause collapse. Some of thesg. ways include water coursing down the channel left by the collapsed chimney into the basement of the building and soaking the substrata, and neglect of the storm water guttering and downspouting of the building so that large amounts of rainwater stay next to the building and enter the foundation material: There are others which are not under the control of the property owner. These might include, but not be limited to : a break of a water main in the street, or the collapse of a storm sewer, breaking of a sanitary sewer, leaking of a manhole causing surcharging of sewers and ground infiltration. If the street were to be torn up, especially Dubuque Street for a repaving project, and inadequate drainage were provided, or trenches for utility reconstruction cut in the street which might impound water during construction, the heavily strained bearing capacity of the soil might also be reduced to a danger point. One of the worst aspects of this problem - 12 - is that there is not a good remedy readily available, within the expenditure of reasonable resources . Unrerpinning really will not wo=k because there is not much to support such an undertaking below the footings, and the cost is prohibitive. Another possible solution might be that of concolidating the soil with grout injected under pressure. The writer has used this process to consolidate footings of a fire station which had been built on fill and had settled until the doors would not open, and in another instance, to permit the addition of a building on a wall which was already settling under existing load. But the process has not been applied under unit pressures as excessive as existing here nor over such an extensive an area. The final outcome is not as reliable as one would hope. After a review of the field note and computations, the following recommendations are made to improve the structural integrity of the building: E.o RECOMMENDATIONS c., M 1 . A permanent support system for the west interior:,-7): bearing wall should be installed in the basement..: a ca 2. The floor joists that are cracked, broken, sagg, and rotting on the west side of the first floor shod be replaced. 3. The mortar in the stone foundation walls should be stabilized . 4. The collapsed chimney on the west side should be cleared - 13 - away, and repairs made to the building to prevent the intrusion of water into the exterior wails, the base- ment, and bearing stratum . 5 . The building should be maintained in a weather-tight condition. 6 . Gutters and spouting should be maintained in working order, and care exercised to keep storm water away from the foundation of the building. 7 . Wall of the building should be repaired and repointed where necessary, and cracks filled. 8 . Care should be exercised on site to make certain that the foundation bearing soil does not become saturated. 9 . Structural alterations of substance should not be undertaken to the existing transverse bracing, other than the end walls, to support the bearing walls and distribute wind forces. 10 . No alteration should be undertaken which adds additional loading to the walls and foundation material . 11 . Care must be exercised that public street and utility operation or replacement does not lead to serious damage to the substrata, and therefore, the building itself . !-1,1 ?i r lit 61 :1114 9e 33n 96 I " EXHIBIT A QC'; t. v1 C-.1 Q, -Ci p' - c'a _r II r 1 2 14 /0`/o 15 I.5 CZ /6" 716 1------- 44 Srs 0-04/9)7oen I Third P/oor 512' dreg, bldg L /6, 8 i t X61 p/b q,-1-,n+e ", Corr/dor C210Orf ene n 4 Secornd f/oor - Df1 I ` ( F�C-ter/o,- r/G•k 62n.-/715 Kea /I ,/wAQi/40-6r1ck 6eorw-y / �)d�'er"/or be-ick /� f¢r/or b2ar,r19 yv4// , beering will/ -------2---, ,i-St P/ooi' L' /rd/e r C»c./ os� �� !� G .lug or�- Sc�s Y�i�-i �i /ff"mortared rtiWe 0 At ,Ar c --,� �r tea.-/� �✓a/ls ; • • 9 • Cc%-i i7--co ring Press Oil k--- --- = 2 To,? /59 �T�_/ Ty/a/c 44. GRO5 5 .SeGT/ of (/oa.Ein9 /1c'-1 ) OR/Er/ /V4 L BuRA' ' 3/..0 4- co7k1sre, .. L. /1/, / ' A/A/W. /Av EXHIBIT B '1, . - - -- --- --- - - - —support system m s si n g L r .4na n y cracked , brok foists ? 'r ' F/ocr- 7 /4 /OJa I s/-s CZ /6' 74,5 __.-,--/ /9" es loor jacks + prop fhpc,U9hovt this area 7h / rd , '/ ,p- I . ' 1 1 / , 412' or/g, b/dg 0, . t /6 ' t a/bgrf'»G "Jf Corrue apar74,71 42 n71 } SecondcrackedILL_ L EC7`er/o,- r/G•k beori715 wa 1/ /47Lerior bric . 6eor7' eya ii 6.)e7-er/Or prick. //) f2rvor 6¢arit29 be0r/r79 w4// ii rsf F/oor" i �,rder Aric./ a 00 2.� . __ a /r - sys j 1: !r"mortared ru6M ig' /1" I°dP_I , •• 9 1 4 8acirenl• i f'c. IRFoo r,-,., Pr>SS _ �"" = 2 Ti,-1 S� Ar. - — J" TYFicAL. GRO55 _sear/ al,/ (/oo.ci.., cj i1or-T, OR &/ N4 L B ,RKL.. ' 8i..o4 co"-/ere /_ iii , FLOOR AND SUPPORT DEFECTS ,../,,,,,,, /A,, • EXHIBIT C . -- -- _ _____ .- -- 1 __ - . - _ NATURAL MOR TA '. 1 LOOSE ALL STON L WALLS %our fin F/coi'7 • ,. 11 �i e e� �hrou y�ov9s-; • .) '-- 4 r... :1-,. . . �fJ R CD — 7f, ' rd F/aarII •• I / 1712' brig, bag /6' 8` t /6 ' 7 l p/b4rfrr7G.lf e.orri,k'Or p Gal'.fr» n ZT Second f/oo�' i 1 II 60L2r i0 r• ‘riGk / bear•i n9 wa// /if' 4-Z r7or brick_ beor7 6Yferfar brick //1712r'IOr 6¢or-,•19 • 6e7r/r'q W4// w4// G,,-.5-/- JC/oor get 1 4-le-der uhc/ .s� } r ��. il -fup ar� S ,1 SGoS7-71f CX-is ( i ISI /r"morr'ar-ed rcIeWe 111171 walls 6. 1 qi . : • EXHIBIT D r Z 4,-, CD • V C'7 _ (-3 N < Four .7'/1 F/oor7 _, ) !L Il r LO 1 Or T V: (2 /0 's 74-.5 CZ /6 a _-� --�' , /9" Srs • 0O 74),-04/9))0U71- 3 1 C Ki Z z O v) ..J - a �- - a Third P/oo - v 4 ( a ; Q � • a / I2' dr/g, bide '- < r Z z c ` /6/ 8' t /6 / e `" L W O r ~ 0/71,-7 ,77 C/7 " ."- �corr a'or apo,-></n e n - a d c O .second f/ooc1- • a ]� ] L U! `� O' H ex7`er/0 r ,rick bZo.-reT wail 14-1-2rior6ric.k_ beOr7r15 `Z f- rya iI �)d-eI'/Or 6r/Gk. 474-gr•/or ZP¢Dr,f?9 WQ// - 6zOr/ng wall -----Z.---. /rSf F/cor . i'''C/e r a' / posl II • r `'/` L W • = i n „�,p�no. 7Sy s ��; (� ►' /f"norrgred / dWe �$r c; :mg' wails i 111 ja5eir tSr4 2 ✓ r t _y r � ` •1�/ - �'=, �n // S.9 ,cf SUBSOIL POTENTIALLY TYP/ G - L GR 055 _5eC. i0^/ UNSTABLE (/oalc" rior-7 ) DRi 6r/N,4 L et./R4"1.--5.).' 54.o4 Cols re- - __ i_ /a- .-:. • GFT T1 FMFNT DEFECTS A/A/1w QA/, i . 1 a BL'r K::LLY APARTMENT BUILDING if t ; i. I ..744-:.. o''''-' --.4--.....1e_1:.-.4.1.,iz_,tz- .-,... ...-....._: J a _� '1 .. • rig f .f +� 1 • .i-,. . • 010"1„..- • ..-`: I —144- in `AI" ia� K .t.: • 1 j .. : V.. . r•-• -T.,..: LY _ , Brick replacement Northeast corner, North wall t.it\01 'AJ..I1 VIAU.l 0 :I l I-V-11 3Z 33096 , : . ) BURKLEY A PA R'TM ENT BUILDING ir- iii,„...._ ...: ---__ . . : , 111511 •.....--•-. ." - • 7 . . . . 1"' - - - Tr.ri ., • i .........-wekt. --- ; •' i' -: •- --- --__ l• .7_•.4.a '41/ ,o, ,../.. e ......• .\t''s - • \ _ .... ... . "4 — -.X . .. \I 1E4 - - r • .. .....11.,-......‹,_,,.,,: ) I. ro ..2.n. ................." _. iiTi" I a i - lry . . ,I.:1" • - ;.)...J-s'. I 1 _______ 111 ILM.,..1 .'4,.. ' •iir. ..,_IT:_ . ' 41111100.. Fr !.....,-.S.• .------ IFI FN.: . .. - • , *Ili\0.1. 2. .. . _ ) --F------ • ViTir - -- - ---- - - . .,soi - •,Flitt ,r-r 13 Ph. ' \. III' ' . -I•1-,,,\' ' •---•7 s VI Prw:E jig. -.: ill- • i Ir , N AtN 1 • - Ili.: - • _.'..1.--1V.: •q _ .. . Ir :... .. . . . - t 1 tn,•_•,..*- itm . - - • . . H is - ------..--- I! '.... .' I bk.... : Ilt -...." .". ..' "-'*-• ••• .. ;:ie r t. -.:-- ' ,..r..:-...,--....:::::•_:-__---- ---,-,.;:-_,--...-1.7-,it,. _ .....,_,...A. - t... ..:::. . .ritr, ._.--.... -_---,.....-1...;.io)..-.--.--otretxr.-----•- :._, -.'' . _ .. . . .4.---''raTiviiimilib:-- --..44‘-‘. ...e..."wwiloorrfirs.•=9,1tr' :--t:- .. .. . . • . " .__ . • South Elevation WADI 4A113 VA10 I '4.1747 OS :1114V 9z 330 96 , • 4- ) t f 5uTpTTnq go apTs 4sem L.91.1UITLID pasclaTT op .;.,:;=5:,;17.1. :-.•:-,.:7...."-:,:i-..;,,..7.=-77:44-.4c:ft-.7t-w.._----::.1-,... -. --. .. _ - ....-'fr• .....Z.-•:...;- - :-.-• --.:,, ..-.-•s- 114-a--11.-..),•-•.-•-•- • ''':. •:' -"...=-..i.,-,-. ,--.-"..1:-•IL'----: -..--- irx.tiiii4ft, "- ...,-', . -::-.- ....,...„. ,.._ or .. • „fp.... ..... i _...., -Th . , , I 7 i. r . 7 . 1 • ,... i •I i Cn 4. Lr7 1 . i ae. --. i ,•, . . u-.- il.. i• " • ., ' '.. ft...— . —,_ ‘..0 _ • , ._,- Cs..1 —LL:.) .• ,:. rr, , • r , c_., .._:,r: . .,.• ---. Lt-1 __,:4,- i •....: Cn . tgA:"1--r , • ED N I C-I L.1E L 'Alla Vd 71.37}1EflE • i • 3T RKLE: APARTMENT BUILDING ° . t-�. :t . I111111 w . ' �. � . w ; t? trF. t r'-:.`1,1P1- s.! wL'... ':i i. -r f.Frei"._..tG X71w. .r I ' . ,..r - Channels supporting wall bulge Northeast Corner - ` p ,' 1 '.� 1 �,n '}a01 OS :1Ivii,- 9Z030Q5 v BL;RKLEY APARTMENT B ILDING -rte % '.'.�i^-! M!i: .r. i4As.•. r,-Fr. t•7••7r...-% ,-V.A ":.77 77;,------ • .,:::._.:_-.`.. ....1„A .:6;,:.,.....„, �. -�. r:: -'sem: '- • f Y .-4:74......"' w-,.;,W1+yy'' �.y .`.'i'. ••• ,,;0•,' -4c —'%:: 4, f vi , ...., 0.-i ,t- ,...<7,y,A*7:. ;...titi7—,.. tifia.%;=.:-..t. "4" tr.", •,--,-....-Awer-j,litire....:::„. vz:* Com:. Serious cracking in wall between windows Southeast Corner Vr� ''A�_i3 \�MQI OS :i I WV 9 Z 330 96 BUPKLEY APARTMENT BUILDING j � 1111 • ;! i., i. *' • • fi• t j.'.ry C-: 1 Channel Repair Northeast corner East wall y�,A } p F �101r i �� y� iQt Notice bulge liv-- s.1 8 !'7 OS :INV 9303095 '• nr--- CITY OF IOWA CITY NOTICE OF DECLARATION OF DANGEROUS BUILDING AND ORDER TO VACATE AND REPAIR OR DEMOLISH LID a, c 0 April 25, 1996 C X: M. Kabir Younoszai ©" = ''�` Hayat Younoszai c/o Chambers Agency 112 Fifth Street PI. Coralville, IA 52241 Re: Lot 8, Block 78 Original Town, Iowa City, Iowa a/k/a 130 E. Jefferson St. Declaration as Dangerous Building As a result of several inspections by the City of Iowa City Housing Inspection Department and in view of a recent report completed by James C. Jacob, P.E., a local structural engineer, the Iowa City Building Official hereby declares this structure to be a dangerous building under Section 302, paragraphs 1, 5, 7, 8, 9, 10, 11 , 13, 14, & 16 of the 1994 Uniform Code for the Abatement of Dangerous Buildings, based on the following information: 1) Mr. Jacob's report sites several structural concerns with the north and south masonry walls. These walls are deteriorating and the north wall is buckling. Mr. Jacob's report states that the north wall "is unstable and collapse is possible," and recommends monitoring of the exterior walls on a weekly basis. These deficiencies are very apparent to the naked eye and have been observed by City of Iowa City inspectors. 2) Floor joists may be overloaded, which serves to exacerbate the dangerous condi- tion of the building. 3) Local housing inspectors in conjunction with the representative of the State Fire Marshall's Office conducted a fire safety inspection of this building and noted numerous life safety violations regarding fire warning systems and proper exiting systems. These violations have not been formally reported due to questions regarding the structural integrity of the building. EXHIBIT "G" 410 EAST WASHINGTON STREET • IOWA CITY, IOWA 52240-1826 • ( 319) 356-5000 • FAX (3I9) 356-5009 • 2 Order to Vacate Due to the severity of these deficiencies, the condition of this building makes it dangerous to the life, limb, property and safety of the occupants and the public. It is ordered that this building be vacated by June 1st, 1996. Said conditions require the posting of a notice to vacate and you are hereby notified that a notice to vacate by June 1 , 1996, will be posted at or upon each exit of the building. Order to Repair or Demolish After the building has been vacated, it must be repaired in accordance with all applicable current codes or demolished. All permits for repairs or demolition must be secured and the work physically commenced by June 25, 1996, with work to be completed by November 1st, 1996. A new certificate of occupancy shall be secured before the building can be reoccupied. If repair or demolition work is not commenced or completed in accordance with the above dates the City may proceed to cause,the work to be done and charge the cost thereof against the property or its owner. Appeal Rights Any person having any record title or legal interest in the building may appeal this notice and order or any action of the Building Official to the Board of Appeals, provided the appeal is made in writing as provided in the 1994 Uniform Code for the Abatement of Dangerous Buildings and filed with the building official within thirty (30) days from the date of service of this notice and order. Failure to appeal will constitute a waiver of all rights to an adminis- trative hearing and determination of this matter. If you have any questions please contact me at 319-356-5126. Respectfully submitted, rn om] �+U Ron Boose ' gra ' Senior Building Inspector 37, ,, :, cc: Posted on Property " 7.7 '"`f William L. Meardon Cri Ted Chambers First National Bank Historic Preservation Commission • Tenants (by placing a copy under each apartment door) via 130jefte December 4, 1996 REPORT BY HEARING EXAMINERS FOR THE BOARD OF APPEALS IN RE: BURKLEY APARTMENT BUILDING — 130 EAST JEFFERSON STREET BRIEF SUMMARY OF EVIDENCE CONSIDERED: Reports by Noel Willis, Van Winkle-Jacob Engineering (dated March 28, 1996) and Shive-Hattery, Inc. (dated August 13,1996) as entered in evidence. Site investigation conducted at 130 E. Jefferson Street on October 1, 1996. City of Iowa City Housing Inspection Reports on 130 E. Jefferson Street furnished by the City. Evidence presented at the Hearing on October 1 , 1996. EXAMINERS FINDINGS, CONCULSIONS AND RECOMMENDATIONS We find that the report completed by Shive-Hattery, Inc. and furnished by the Owner accurately reflects the condition of the building located at 130 E. Jefferson Street. Based upon the evidence considered, we conclude that the building located at 130 E. Jefferson Street is a dangerous building as defined in Section 302 of the Uniform Code for the Abatement of Dangerous Buildings as described in paragraphs 1, 5, 7, 8, 9, 10, 11, 13, 14 and 16. We further conclude, based on the evidence considered, that the building is unsafe for human habitation and the vacation order issued by the City was appropriate. We recommend that the Order for Demolition issued by the Cite be amended to allow the Owner until June 1, 1997, for submittal of final plans to the City for a building permit and until June 1998, to make ail necessary repairs required to obtain a new Certificate of Occupancy. The Owner should be required to properly secure the building to prevent unauthorized occupancy and take measures to avoid endangering the public. Respectfully Submitted: Robert C. Carlson Jo•' taska Tom Werderitsch 4111111.110 Vill01 J.3 t\4j(1 OS :110 9E 330 96 EXHIBIT "H" # " • 601-603.1 1994 ABATEMENT OF DANGEROUS BUILDINGS Chapter 6 PROCEDURES FOR CONDUCT OF HEARING APPEALS • SECTION 601 — GENERAL 601.1 Hearing Examiners. The board may appoint one or more hearing examiners or designate one or more of its members to serve as hearing examiners to conduct the hearings.The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the board for decision. 601.2 Record. A record of the entire proceedings shall be made by tape recording or by any other means of permanent recording determined to be appropriate by the board. 601.3 Reporting. The proceedings at the hearing shall also be reported by a phonographic report- er if requested by any party thereto. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefor.Such fees may be established by the board, but shall in no event be greater than the cost involved. 601.4 Continuances. The board may grant continuances for good cause shown:however,when a hearing examiner has been assigned to such hearing,no continuances may be granted except by the examiner for good cause shown so long as the matter remains before the examiner. 601.5 Oaths—Certification. In any proceedings under this chapter,the board,any board mem- ber,or the hearing examiner has the power to administer oaths and affirmations and to certify to official acts. 601.6 Reasonable Dispatch. The board and its representatives shall proceed with reasonable dis- patch to conclude any matter before it.Due regard shall be shown for the convenience and necessity of any parties or their representatives. SECTION 602—FORM OF NOTICE OF HEARING The notice to appellant shall be substantially in the following form,but may include other informa- tion: "You are hereby notified that a hearing will be held before(the board of appeals or name of hear- ing examiner) at on the day of 19 at the hour . upon the notice and order served upon you.You may be present at the hearing. You may be,but need not be,represented by counsel.You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may re- quest the issuance of subpoenas to compel the attendance of witnesses and the production of books. documents or other things by filing an affidavit therefor with(board of appeals or name of hearing examiner)." SECTION 603—SUBPOENAS 603.1 Filing of Affidavit. The board_or examiner may obtain the issuance and service of a sub- poena for the attendance of witnesses or the production of other evidence at a hearing upon the re- quest of a member of the board or upon the written demand of any party.The issuance and service of such subpoena shall be obtained upon the tiling of an affidavit therefor which states the name and address of the proposed witness:specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved:and states that the witness has the desired things in posses- sion or under control.A subpoena need not be issued when the affidavit is defective in any particu- lar. ii i 10 O :1114 9Z 330 96 1994 ABATEMENT OF DANGEROUS BUILDINGS 603.2-605.1 603.2 Cases Referred to Examiner. In cases where a hearing is referred to an examiner.all sub- poenas shall be obtained through the examiner. 603.3 Penalties. Any person who refuses without lawful excuse to attend any hearing or to pro- duce material evidence which the person possesses or controls as required by any subpoena served upon such person as provided for herein shall be guilty of a misdemeanor. SECTION 604— CONDUCT OF HEARING 604.1 Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. 604.2 Oral Evidence. Oral evidence shall be taken only on oath or affirmation. 604.3 Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or ex- plaining any direct evidence.but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. 604.4 Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evi • - dence on which responsible persons are accustomed to rely in the conduct of serious affairs,regard- less of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. 604.5 Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded. 604.6 Rights of Parties. Each party shall have these rights,among others: 1. To call and examine witnesses on any matter relevant to the issues of the hearing; 77 2. To introduce documentary and physical evidence; 3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing; , 4. To impeach any witness regardless of which party first called the witness to testify; 5. To rebut the evidence: 6. To be represented by anyone who is lawfully permitted to do so. 604.7 Official Notice. 604.7.1 What may be noticed. In reaching a decision,official notice may be taken,either before or after submission of the case for decision,of any fact which may be judicially noticed by the courts of this state or of official records of the board or departments and ordinances of the city or rules and regulations of the board. 604.7.2 Parties to be notified. Parties present at the hearing shall be informed of the matters CO be noticed, and these matters shall be noted in the record,referred to therein,or appended thereto. 604.7.3 Opportunity to refute. Parties present at the hearing shall be given a reasonable opportu- nity,on request.to refute the officially noticed matters by evidence or by written or oral presentation of authority. the manner of such refutation to be determined by the board or hearing examiner. 604.7.4 Inspection of the premises. The board or the hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing,provided that(i)notice of such inspection shall be given to the parties before the inspection is made, (ii)the parties are given an opportunity to be present during the inspection.and(iii) the board or the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclu- sions drawn therefrom.Each party then shall have a right to rebut or explain the matters so stated by the board or hearing examiner. SECTION 605—METHOD AND FORM OF DECISION 605.1 Hearing before Board Itself. When a contested case is heard before the board itself, a member thereof who did not hear the evidence or has not read the entire record of the 0j prroseectin 4 shall not vote on or take part in the decision. VlAU1-�rti "s 1!�',1 a�� 9Z 33G OS �tl • 605.2-605.8 1994 ABATEMENT OF DANGEROUS BUILDINGS 605.2 Hearing before Examiner. If a contested case is heard by a hearing examiner alone, the examiner shall within a reasonable time(not to exceed 90 days from the date the hearing is closed) submit a written report to the board.Such report shall contain a brief summary of the evidence con- sidered and state the examiner's findings,conclusions and recommendations.The report also shall contain a proposed decision in such form that it may be adopted by the board as its decision in the case. All examiner's reports filed with the board shall be matters of public record.A copy of each such report and proposed decision shall be mailed to each party on the date they are filed with the board. 605.3 Consideration of Report by Board—Notice. The board shall fix the time,date and place to consider the examiner's report and proposed decision.Notice thereof shall be mailed to each in- terested party not less than five days prior to the date fixed,unless it is otherwise stipulated by all of the parties. 605.4 Exceptions to Report. Not later than two days before the date set to consider the report,any party may file written exceptions to any part or all of the examiner's report and may attach thereto a proposed decision together with written argument in support of such decision. By leave of the board,any party may present oral argument to the board. 605.5 Disposition by the Board. The board may adopt or reject the proposed decision in its en- tirety, or may modify the proposed decision. 605.6 Proposed Decision Not Adopted. If the proposed decision is not adopted as provided in Section 605.5,the board may decide the case upon the entire record before it,with or without taking additional evidence.or may refer the case to the same or another hearing examiner to take additional evidence. If the case is reassigned to a hearing examiner,the examiner shall prepare a report and proposed decision as provided in Section 605.2 hereof after any additional evidence is submitted. Consideration of such proposed decision by the board shall comply with the provisions of this sec- tion. . 605.7 Form of Decision. The decision shall be in writing and shall contain findings of fact,a de- termination of the issues presented,and the requirements to be complied with.A copy of the deci- sion shall be delivered to the appellant personally or sent by certified mail,postage prepaid,return receipt requested. 605.8 Effective Date of Decision. The effective date of the decision shall be as stated therein. tNoi 4Aii3 0I 71 h f in Q 3 :I I . 9 Z 330 96 12 (319)354-3040 FAX;(8 (319)3040 • SHIVE ‘HA.TTERY 3 354-6921 Shive-Hattery. Inc. 2122 ACT Circle August 13, 1996 Iowa City. IA 5241445-9581 0- `• C7 Meardon, Sueppel, Downer & Hayes rn ATTN: Mr. William Meardon (for Mr. and Mrs. Younoszai) 122 South Linn Street Iowa City, Iowa 52240-1830 cn 1 RE: Burkley Apartment Building Dear Mr. Meardon: The owners have requested and authorized an independent structural evaluation of the above captioned structure at 130 East Jefferson Street, Iowa City, Iowa. This in response to the recent closure of the building by the City of Iowa City. A brief report by Mr. Jacobs dated March 28, 1996 identifies inadequacies that require address. An earlier report by Noel Willis provides some details of the building history and conditions observed at that time. This report is undated but is believed to have been prepared in the 1970's. As we understand, the owners had no prior knowledge of the Willis report. Building History Elements of the history of this building are enumerated in the Willis report and will not be repeated. This report suggests that the "Burkley Building" was placed on the National Registry of Historic Places. We have communicated with Ms. Judith Ann McClure of the Office of Historical Preservation, Iowa State Historical Department. We jointly visited the site on July 14, 1996 to visually examine the existing conditions and constructions. She commented on the significant number of obvious changes since the original construction that were visually evident. Each of these changes reflect types and styles of construction typical of that period of execution. Ms. McClure strongly expressed the desire that any reconstruction or rehabilitation efforts be directed to preserve the existing original construction style of the period. This is especially true for consistency on any single floor of the structure. She also finds it important to change out those items of construction that are not representative of the "period." She has expressed an interest to remain involved in any continuation of work on this project. She remains an excellent source of information on historical preservation, periods of construction, funding grants, and benefits. The character of the first floor windows on the south end suggested to Ms. McClure that the original construction may have had a"front porch" across the south end of the building. Subsequent examination of the building exterior seemed to confirm this hypothesis. She also 196251-0 EXHIBIT "I" I art rn rrt D p I Meardon, Sueppel, Downer & Hayes ri August 13, 1996 Page 2 : - noted that alternate first floor windows on the east elevation, northerly end were origina145► doors. I She expressed desire that some of these features may be incorporated into a reconstruction project(s). Building Geometry The original building is four story , 42'-3" wide out to out and 90'-2" long out to out. The one story abutting structure to the north is 10'-0" long and 25'-2" wide. The two added wings to the west are three story, 9'-4" wide by 15'-1" long. The exterior walls are three story brick with three wythe of brick and with a plaster inside finish. The fourth story, east and west and south, are mansard roof with dormer windows. The fourth story north is brick continuation as a gable end to the roof line. The brick in the original construction are 4-3/8 x 2-1/8 x 8-5/8 and the brick in the addition to the west are 4 x 2-3/8 x 8-1/4. Thus, coursing lines are mismatched at the juncture of the two • different materials. Typically, the interior dimensions provide 14'-6" wide rooms on the west, 6" west wall (lath and plaster on 2 x 4 wood stud framing), 8'-2" corridor, 10" east wall (two wythe brick with plaster both faces), and 16'-4" wide rooms on the east. The east-west walls are in no consistent pattern for room lengths and apartment sizes. The mansard roof on the fourth floor has reduced the west rooms' width to 12'-9" and the east rooms' to 14'-9". Window seat cupboards in the dormer areas accommodate the width variation. Above the fourth floor the interior wall on the east side of the corridor is lath and plaster on wood stud construction. The original first floor ceiling height was 9'-9"; second floor was 9'-4"; third floor was 8'-8"; and fourth floor was 9'-0" on the south end and 9'-5" on the north end. The fourth floor has about a five-inch step at about 42 feet from the south end. Many of the rooms have dropped ceilings below the original construction. Presumably this has been done to accommodate subsequent installation of utilities. The existing interior stairs visually appear out of level and this was confirmed by field measurement. The first floor stairway is 38 inches wide, the second floor stairway is 42 inches wide, and the third floor is 40 inches wide. Doors close the bottom of the first and second floor stairs. The third floor stair is open. Field Observation and Evaluation (Exterior) All evaluative findings and comments are based on our visual observations in the field. We have not performed any material testing and do not consider this in-depth investigative effort necessary or justifiable. Exterior photographs are appended to this report. 196251-0 I Cr' Meardon, Sueppel, Downer& Hayes -! August 13, 1996 CD Page 3 I As an exception, we have collected 48 samples of sixteen different possible asbestos-containing materials for laboratory analysis. These sampled materials included wall and ceiling plaster, all kinds of ceiling tiles, all different floor tiles, pipe wrap, and boiler insulation. Of these samples, four samples were found to have asbestos content above one percent. The four materials are as follows: 1) boiler wrap insulation in the basement; 2) steam pipe insulation found in the basement; 3) 12" x 12" white floor tile found in Room 38; and 4) brown diamond pattern linoleum found in the restroom areas of Rooms 21 and 24. This survey and laboratory analysis was necessary and defines those materials that must be abated-as the project continues. This would be necessary for either reconstruction and or demolition. The probable cost for asbestos abatement is about $10,000. If this facility is to be rehabilitated, visual examination suggests an urgent need to restore a positive environmental seal to the exterior to prevent moisture penetration into the perimeter walls and structure. 111 The flat roof on the "sun porch" area will require immediate replacement to stop observed leaking in this area. In conjunction with this roof replacement, the perimeter flashing will also require replacement. We have also noted the missing parapet caps on one of these additions. Replacement in a rehabilitation project is necessary to prevent moisture penetration into the wall as well as aesthetic requirements. We have not observed any roof leaks on the main roof, but there is significant evidence that moisture is penetrating the top of the perimeter wall. Eave flashing, exposed and concealed gutters, and down spouts will require corrective action to eliminate this source of moisture penetration. The roofing membrane shows considerable aging and early replacement of this protection must be contemplated. The brick work reportedly was recently tuckpointed. If this was done, it was not done satisfactorily. There are many brick joints that were pointed poorly and with inappropriate grout and poor tooling. Areas of broken brick will require replacement elements. The present brick has been painted and matching this appearance in a repair area will probably not be aesthetically acceptable. Because of the probable age of the paint, we are confident that this is a lead-base paint. Cleaning by sand blast and/or wire brush will not be acceptable to the environment. Cleaning with chemicals may be an option, but this may be detrimental to the brick materials. Therefore, the probable option is removal of loose paint with a fiber brush and finishing with a new coat of paint consistent with the historical perspective. The doors and windows also will require some address to minimize environmental penetration. Minimally, opening perimeters will require caulking. To restore an appropriate historical perspective, some of the doors will require replacement to achieve an acceptable degree of uniformity. Similarly, some of the recent replacement windows will have to be changed out such I 196251-0 I I 4". Meardon, Sueppel, Downer & Hayes _ - August 13, 1996 ", Page 4 that there is an historical correctness of six over six (6 panes top and bottom). Ideally, the transom windows on the first floor east exposure will be restored for a uniform appearance. Ms. McClure felt that the recent storm window installation was totally incorrect for this historical structure. The storm combinations are not as large as the windows which reduces the exposure of the top light and places the center horizontal divider inappropriately. Also, the aluminum frames are historically incorrect. She suggests that a properly sized wood frame combination window would be appropriate. Our field evaluation also confirmed the many very significant structural deficiencies that are readily apparent. The north brick endwall of this building is badly misaligned and bowed. Visually, this wall gives every indication of instability and collapse is possible an any time under the right combinations of external conditions. Certainly, this is a major reason for closure to occupancy. Measurements on the interior indicate misalignment may be about 2 'A. inches. The one story structure to the north similarly shows a very significant tip out of plumb. Instability is also evident but failure is not likely unless precipitated by the three story wall above. We have noted that the two brick chimneys that were on the north end of the original structure have been removed. These were probably removed in the late 1970's. Building penetrations into these chimneys have been closed, but the roof flashing at these points has never been addressed. History of the side wall tie on the first floor, northeast corner is unknown. Presumably this may have been placed many years ago to secure this corner. It appears to have functioned appropriately and there is no visual evidence of wall movement at this time. We have observed a significant number of replacement brick on the north end wall near the northeast corner, near and below the second floor line. History of this corrective work is not evident and functionality appears to be adequate. We have also noted some minor bowing and misalignment of the south end wall at the third floor line. This wall does not reflect the instability evidenced in the north end wall and probably is not reflective of a major structural problem. Movements appear to be less than one inch. The main entrance steps to the south show significant settlement with some lateral movement. The railings are inadequate and these steps are a safety hazard. Similarly, the entrance to Apartment 6 on the east side had a most unsatisfactory and deteriorated step as an entrance. Most recently, we have noted that the step is now removed. The exterior surface of the exposed foundation does not suggest any foundation problem. We have not noted any open joints or cracks that suggest movements. Nominal tuckpointing and maintenance is all that apparently is required. Field Observations and Evaluations (Interior) As previously reported, the grout for the stone foundation construction is a sand and lime mixture. This is most typical of stone foundation construction before the advent of concrete 196251-0 I 1,_ . Ak . t..0 O Meardon, Sueppel, Downer & Hayes '{+. �= • I August 13, 1996 0 Page 5 - cn I foundations. Similar construction for masonry walls throughout downtown Iowa City may be I found in all older structures. This "grout" has minimal cementing properties but provides a leveling bed between the stone courses. Visually there does not appear to be any significant deterioration of this foundation. As typically may be expected, there is a small filtering of sand on I the inside face from all joints. This material collects as a small cove base around the inside perimeter of the foundation. There does not appear to be any significant cracks, settlement or movements of this perimeter foundation. This stone foundation is nominally about 28 inches wide and provides about 8 feet clear height in the basement. The north and west walls show some 1 minimal signs of moisture penetration from the outside. Continued functional usage of this foundation with minimal maintenance may be expected. I The interior foundation consisted of a continuous stone masonry bearing wall at the alignment of the building east corridor wall. This wall is nominally about 18 inches wide without any indication of widening at the base. The west corridor wall was supported on beam and column framing to I spread footings. The beams were minimally sized timber and the columns were brick masonry. The spread footings have not been exposed and the size not determined. Since the original construction, additional beams and columns have been placed to provide additional auxiliary I support as apparent problems may have been observed. These added supports are randomly located without a definable pattern and with a varying effectiveness. We have not determined the size of the individual footings for these added supports. IVisual examination of the structure reveals a very significant settlement of the interior supports. Field measurements indicate variations from a flat plane of 3 to 5 inches in the building floors. I Out of plane determinations are much larger at the north end of the structure in comparison to the south end. We have estimated that settlements in this corridor area may vary from 1 to 4 inches from south to north. IThe first floor framing consists of 2" x 10" floor joists at about 16-inch centers. Typically, these joists are seated about 3 inches on the masonry foundation. In an area along the west wall this I bearing seat has been observed to be much smaller and areas of bearing failure were observed. In this area, the joists have been subsequently underpinned with added timber beams and columns. There is no apparent tie to provide physical continuity through the center bearing wall. We have I observed several broken floor joists on the south end of the east span. This area has been underpinned with added timber beams and columns supports. We have noted a broken lintel over an opening through the interior masonry bearing wall. This Ihas permitted several floor joists to be depressed significantly out of plane and these joists probably are not fully supported in their depressed position. This is obviously not a recently occurring problem and has gone unaddressed for a lengthy period. Similarly , local singular joists Iare unsupported in this bearing wall where ill-advised utility penetrations through the wall were made without proper address of joist support. 1 196251-0 I + Mti cn I Meardon, Sueppel, Downer & Hayes ; August 13, 1996 cam`' Page 6 -- " :n The floor joists in the north end, west side are a longer span than typical. Nearly all of these joists I have failed in bending and/or horizontal shear propagating from a notch at the bearing on the support beam. To address this failure, timber beams and columns have been randomly placed to provide the required support. The absence of any pattern and continuity of this corrective effort I suggests that this added support was not well planned or executed. An obvious cause for the broken floor joist is the discontinuity of the vertical alignment of the loads and supports. In this area the supports in the basement are not under the first floor wall loads. IThe interior walls show significant cracking and repair areas which confirms the building movements. Very significant cracks are in evidence adjacent to the north end wall that has accommodated the aforementioned lateral movements of this wall. Original ceilings, where Iexposed, similarly show significant cracks and repair areas. We have made investigative openings into walls and ceilings to ascertain the construction. I Typically, on the second and third floor, the floor joists are 2 x 10's at about 16-inch centers and span east-west. These joists lap over a wall plate on the west corridor walls. In the east corridor masonry wall, the joists bear about three inches in "beam pockets" and do not lap and are not Iconnected. Similarly, the joists pocket into bearing seats in the exterior masonry walls. We have noted that the dimension lumber is rough sawn and full dimension which is reflective of 1 the period of construction. Certainly, there is no marking on these materials indicating the species of lumber or the quality of this material. Typically, craftsman of that period were selective in using the available materials in a judicious manner and evaluative analysis will be based on Istandard quality fir material. Recognizing that the two additions on the west side of the facility were not of the original I construction, we deemed it necessary to investigate this area. The east-west floor joists at the original west wall line are now supported with an end header consisting of three 2 x 10's. In our opinion, the joist connection to this header with three nails in end grain is completely inadequate and will require address. The floor joist in these additions are also 2 x 10's at about 16-inch centers. I The joists at the fourth floor are found to be 2 x 8's at about 16-inch centers. There is not an apparent reason for this change in framing. To accommodate the mansard roof construction, the wall framing bears on these joists at about 18 inches from the end of the joist. This probably delivers some of the roof load to these joists. It appears that the floor joists on the southerly end Iof the building on this floor are 2 x 10's. This may be associated with the 5-inch step in the finished floor as previously noted. IWe have noted a significant amount of cracking in the ceiling area adjacent to the window dormers. This may indicate inadequacies of the lintel/header in this area that carries the roof loads across the window opening. 196251-0 CFI i1 Meardon, Sueppel, Downer & Hayes August 13, 1996 r. rcD� N awma.. Page 7 -,r- We have observed several variations in the roof construction. The 3/4-inch sheathing spaAs on 2 x 8 rafters at about 30-inch centers. These rafters have a 2 x 4 rafter tie about 12 feet len— g that is attached to the rafters with a 3/4-inch gusset plate nailed in place. The center ridge beam consists of two 1 x 12's with two 2 x 4's as ledger supports. 1 The south end has three bays of about 16 feet with beam and column supports to the rafters. These supports are at 17'-3" centers transversely or about 9'-3" from the inside face of the exterior wall. The beams are 6 x 10's and the columns are 6 x 6's. Typically, these columns extend to the fourth floor level within transverse (east-west) wall construction. There does not appear to be any evidence of continuity of these columns below the fourth floor. Examination in several support areas showed no added beams or joists in the floor framing to carry this concentrated load. As an exception to this framing configuration, the south end bay is framed with a north-south rafter orientation to accommodate the hip roof end geometry. The ceilings in this area are nominally sloping up to mirror the hip roof construction. A center section of roof construction (about a 12-foot length) has rafter construction as above but with no additional supports. There is no visible reinforcement in this area such as trussing or additional rafter ties. The balance of the roof to the north appears to have some trussing that may serve to reinforce the full span rafters. The fourth floor exposed ceiling on the west side is cathedral type (sloping up 11 inches to a high point at about 5 feet from the west wall). The fourth floor ceiling on the east side in this area is dropped and conceals the original construction. Visual observations in the attic suggest that this also has a sloping ceiling with about a 22-inch rise at 10 feet from the east wall. Flooring and floor covering vary throughout the building. Observation of the bottom of the floor construction in many exposed areas suggest that a 3/4-inch random width board subfloor is typically present. Typically, the corridors and stairs are surfaced with carpet that is in an extremely poor condition. Most of the bathroom and kitchen areas are surface with tile or linoleum. Most of the living areas in the apartments are finished wood floors. Generally, these are 4-inch fir laid on a diagonal pattern or a narrow, thin (3/8-inch) slat overlay. In some areas this overlay has been broken revealing the original construction below. Floor plan sketches are enclosed to facilitate our evaluative examination and may be used to assist in visualizing the lack of vertical continuity in the interior bearing wall construction. Structural Analysis and Evaluation Our evaluative analysis is based on the Uniform Building Code (UBC) design criteria. This includes the usual materials' dead load and live loads as follows: I) apartment floor live load at 40 pounds per square foot (psf); 2) corridor floor live load at 100 psf; and 3) roof live load at 196251-0 1--1 0• 4 _ c I Meardon, Sueppel, Downer & Hayes y August 13, 1996 _ Page 8 c.-- I .._,. 30 psf. Snow drift loading is in accordance with ASCE Standard 7-88. Typical allowable stresses I for lumber in this evaluation is the present day Douglas Fir No. 2. This yields an allowable bending stress of 1,350 pounds per square inch (psi), allowable shear stress of 90 psi, and allowable compression parallel to grain of 950 psi. Selected deflection criteria is L/360. The cursory analysis of foundation loadings reveal the following foundation bearing pressures: Location Dead Loads Maximum Design Load West Exterior Wall 2,310 psf 2,980 psf I East Exterior Wall 2,410 psf 3,070 psf East Interior Wall 2,610 psf 4,590 psf IIThe foundation bearing pressures are higher than desirable. Pressures under sustained loading (dead load and fixed live loads) may desirably be at 2,000_psf or less and a maximum design pressure of 2,500 psf would be much better. The general appearance of the perimeter of the Ibuilding permits us to conclude that the exterior wall foundations are probably adequate and continued functional use may be expected. In our opinion, the maximum design pressure on the east interior wall is much higher than desirable and should be addressed in a rehabilitation project. IThe 2 x 10 floor joist at 16-inch centers that are typically used in the first, second, and third floors in varying span lengths are found to be structurally adequate in flexure and shear for the above Jnoted design loads in the apartments and corridors. This assumes a uniform distribution of the - loads and adequate bearing support on the ends. The calculated deflections indicate adequate rigidity for acceptable functional use. In rehabilitation, those joists without adequate bearing I support must be provided with auxiliary support for function. Similarly, those joists that support concentrated loads from bearing wails or columns are likely to be structurally inadequate and will require reinforcement specifically designed for the loads imposed on the member. Those joists I that are damaged, cracked, and/or broken must be reinforced or replaced in any rehabilitation project. Specifically, in the northwest corner the first floor span of the original construction was about 18 feet and the bearing wall from the second floor was at about 3 feet from the end of the I span. As previously noted, most of these joists have failed in bending and/or shear. Repair by reinforcement of the joist and properly placed additional support is recommended. The four 2 x 10 headers at the end of original building floor joist adjacent to the two west additions is found to be structurally adequate and suficiently rigid for the superimposed loading. The joist connection to the header with end grain nailing is not adequate and is showing I movements at this connection. In rehabilitation, we will recommend the addition of joist hangers on all joists. As previously noted, some of the floor joists on the fourth floor are 2 x 8's at 16-inch centers. These joists are marginally overstressed in flexure on the longer east apartment span. In our opinion this overstress does not warrant restricted usage and/or reinforcement of these joists. All N other span configurations are found to be structurally adequate for the above noted design loading criteria. As noted above, these joists are not flexurally adequate for concentrated loads associated 196251-0 I . cp. .1* Meardon, Sueppel, Downer & Hayes c ami August 13, 1996 r-� A Pae 9 r_ Page CD er ;- with bearing walls and or column loads. Therefore, in a reconstruction project all concentred roof loads that are delivered to the floor system by wall or columns must be addressed by reinforcing the existing construction. The roof framing has several configurations as previously described. The framing of the flat roof over the one story addition to the north has not been exposed or evaluated. Presuming usual construction, we anticipate structural inadequacy for present day loading requirements and would anticipate the need for reconstructing roof framing to carry the designated roof design live load and the snow drift loads of the design criteria. Replacement of the roofing membrane would typically be required also. The flat roofs of the three story additions to the west are inadequate. The present framing of two "stacked" 2 x 4's as joist at 16-inch centers is overstressed with the desired 30 psf roof design live load and has no residual capacity for snow drift loading. We have previously noted the need to replace the roofing membrane and parapet flashings. Therefore, a continuation of this project would require complete reconstruction of the roofs in these two additions. The design requirements in a reconstruction project would be satisfied with the addition of new 2 x 8 roof joists at 16-inch centers. As previously identified, the main structure roof has varying structural inadequacies. The southerly section with a two-span rafter configuration with a mid-span support beam is structurally adequate for the identified design loads. However, for this arrangement to be structurally stable, the rafters must be tied together with a rafter tie in the ridge area. The existing 2 x 4 tie satisfies this requirement. The connection of the tie to the rafter is not adequate to transfer the forces in the system and additional gusset plate will be required to address this deficiency. The 6 x 10 mid-span supporting beam is structurally inadequate in both flexure and shear to carry the design roof loads. This may be addressed by adding reinforcement to the beam (either to the face or below). The supporting columns are found adequate, but as mentioned above, the floor system is completely inadequate to carry this load concentration. Functional operation through the years is very difficult to comprehend. Obviously, a secondary path of resistance has been established to assist in supporting this concentrated load. Probably, since these walls are constructed into transverse walls, these wails are acting as a deep beam and transferring the loads to the bearing walls in shear. The intermediate roof section only has the full span simple beam rafter with a repetition of the shallow tie at the ridge. There is no primary path of support that is available to carry even minimal design live loads. Survival through the years obviously has been with the utilization of several secondary paths of support to an adequate reaction. The logical address to this existing deficiency is to continue the intermediate beam and column construction from the south. The rafter configuration to the north is similar to the balance of the structure with the shallow tie at the ridge. In addition, the cathedral ceiling framing provides some mid-span "truss" type stability. Every third rafter is triangulated with bracing to bearing walls. This combination of supports has permitted acceptable function through the years. However, as previously stated, 196251-0 I 4 _. 4 4 . — 0-% y'4 al:"... I Meardon, Sueppel, Downer & Hayes August 13, 1996 cam: — Page 10 . 1c_n these interior walls are not in vertical alignment with the bearing walls below the fourth floor and II deliver the loads as concentrations to the fourth floor framing. The required corrective action will provide a continuous interior vertical line of support from the foundation to the fourth floor ceiling line and develop a roof truss to deliver the design loads to these adequate support points. IBuilding Code Considerations In addition to the identified current and appropriate design load criteria, some fire safety issues IImust be addressed if this structure is to be rehabilitated and occupied. Among the specific requirements are, as follows: II 1. Smoke detectors are required in each sleeping room and in corridors giving access to these sleeping rooms. These detectors shall receive their primary power from the building wiring and shall be equipped with a battery backup. 111 2. The structure shall be provided with an approved manual and automatic fire alarm system. III3. An automatic sprinkler system probably will not be required. 4. Heating apparatus and chimneys shall be in conformance with applicable requirements of Ithe current mechanical code. 5. Access and exit facilities must be upgraded to provide at least two separate exits from U each story. The exit widths and arrangements shall comply with current code requirements. Doors and exit devices similarly are controlled by code requirements. The minimum corridor, stair, and exit width shall conform to the code. The corridor and II stairway shall be constructed to provide a one hour fire separation. The interior stair for a four story building may have to be of fire-resistive materials. The stair shaft at the top floor shall have an approved hatch openable to the roof. The second means of egress may III be an exterior metal stairway that is accessible at all intermediate floors. Either the interior or exterior stairway must be extended to the roof level. Exit signing and illumination shall also be addressed. INConclusions and Recommendations III The structure is presently uninhabitable. Significant structural deficiencies have been noted and reported herein. Additionally, the fire safety considerations require address. In addition to the detail suggestions for the specific identified structural deficiencies, the major identified problems must be addressed. The present interior foundation condition is not acceptable for continued usage. 111 196251-0 � q r C") 1v C31 , Meardon, Sueppel, Downer & Hayes ,.. August 13, 1996 Page 11 n The east interior bearing wall has excessively high foundation bearing pressure. To reduce this condition, the dead load imparted to this foundation should be reduced. In our opinion, the east bearing masonry wall should be removed and replaced with a typical stud wall construction. Removal of three stories of two wythe brick masonry would remove about 2,100 pounds per foot from the foundation. This would reduce the foundation bearing pressure by about 1,400 psf to a much more acceptable level. We believe the west interior corridor wall should be supported on a new framing system. Properly designed individual spread footings for new columns and beams is recommended. The wall construction above should be floor loads are delonstructed as �velred to red throughde the floorslm dirinuity in ect bearings construction such that the roof a from the source to the reaction. In conjunction with the execution of the above address to the interior bearing wall conditions, the floors should be jacked and underpinned to restore the floors to an acceptable level condition. During this operation, continuity in the floor system should be established by tieing the floor joists together over the interior bearing supports and establishing this floor as a flat diaphragm. After establishing this diaphragm, the perimeter walls should be anchored to this floor system. This is anticipated to be accomplished with threaded rods anchored to the floor system and through the wall to washer plates and nuts on the exterior surface. On the side walls, these rods should be tensioned to preload the anchors. On the end walls, effort to draw the walls back to a more correct plane with these anchor rods would be attempted. With this installation, the structure would have significantly more stability against lateral load and would permit the development of shear walls to resist these loads. As previously inferred, the floor plans of many of these apartments will require revision. This is necessary to establish the required vertical continuity of the bearing walls and to provide the vertical stairway necessary for the fire safety issue. This will eliminate some of the present encroachment into the corridors by the bathrooms, kitchens, closets, etc. Rehabilitation Project Budget The Owner has requested the development of preliminary anticipated budgetary requirements for a rehabilitation project that would eliminate the structural deficiencies and provide a functional, safe structure for reuse as an apartment facility. To this end, we have examined some required and optional work items with probable costs associated with these tasks. These anticipated construction costs are summarized in the enclosed attachment to this report and reflect probable costs for estimated items of work. Refinement of these estimates may be accomplished in a preliminary project design as the quantities of work and technique of execution become better defined. I 196251-0 96251 0 41‘; Meardon, Sueppel, Downer & Hayes August 13, 1996 Page 12 The identified costs are, as follows: 50,000 A. Correction of Structural Deficiencies $1$250,000 B. Fire-Safety Issues 130 C. Environmental (Asbestos Abatement) $$2 ,000 D. Floor Plan Revisions E. Roof Membrane Replacement $40,000 F. Exterior Masonry Wall Maintenance $24,000900,000 G. Doors and Windows $21,000 H. Replace Storm Windows and Add Storm Doors e inion this work may be phased and sequenced to permit partial a secure safe scupance, Items rall of In our opinion, provide the identified items of work are finished. In order to through C and part of D would be an immediate need. The immediate construction cost is anticipated to be about $550,000. of the This concludes our report of findings, conclusions and recommendations in the ,nd orrecommen t of property at 130 East Jefferson Street. If you have any questions added assistance please contact our office. We are prepared to meet with you and/or the owner to additionally discuss this report. y I hereby certify that this plan, specification or report was apes pared by m eor under e or under me direct of the personal supervision, and that I am a duly Registered State of Iowa. iir , al / melliimitig %'7 1 Robert C. Lentfer, P.E. Iowa Registration No. 3883 c, My Registration Renewal Date is December 31, 1997 c.:'),-- r� RCL/mas c-).~ .. rn ;..: Enc. �'-z ,1 4j.P 1-1 I I 196251-0 I BURKLEY APARTMENT BUILDING c _ o ANTICIPATED CONSTRUCTION COSTS syr- c -• N,� IIAugust 13, 1996 E5 y,. Cm A. COSTS ASSOCIATED WITH STRUCTURAL DEFICIENCIES — I1. Underpinning/jacking and leveling four story system $ 24,000 2. Remove existing interior brick masonry wall (3 stories) 25,000 3. Foundation construction and basement beams & columns 10,000 4. Partial removal and reconstruction of all corridor wails 52,000 5. Reinforce or replace floor joist and tie joist at brg walls 15,000 6. Establish floors as diaphragm and structural tie to exterior walls 42,000 7. Reinforce and reconstruct flat roofs 6,000 8. Ceiling replacements at structural reinforcements 10,000 9. Reinforce roof framing and support columns 30,000 10. Replacement floor covering 15,000 11. Miscellaneous and contingency items 21.000 ISubtotal $250,000 B. COST ASSOCIATED WITH FIRE SAFETY ISSUES I1. Fire separation corridor walls and ceilings $ 18,000 2. Existing stair removal and new stairwell construction 46,000 3. Exterior fire escape 20,000 4. Fire and smoke alarms 19,000 5. Replacement floor covering (carpets) 15,000 6. Miscellaneous and contingency items 12.000 Subtotal $130,000 I C. ENVIRONMENTAL (ASBESTOS) 1. Asbestos abatement $10,000 2. Replacement floor coverings 5,000 3. Replacement insulations 5,000 4. Miscellaneous and contingency items 2.000 Subtotal $22,000 196251-0 7 D. FLOOR PLAN REVISIONS $ 52,000 1. Interior walls removal and replacement (60%) 2. Ceilings removal and replacement (60%) 38,000 I 3. Repair or replace perimeter walls (50%) 51,0005 ,000 4. Repair or replace finish floor (20%) 50,000 i 5. Electrical allowance 6. Plumbing allowance 20,000 7. Miscellaneous and contingency items 24.000 Subtotal $255,000 E. ROOF MEMBRANE REPLACEMENT $37,000 1. Shingle membrane, flashings, gutters, downspouts, etc. ;.000 2. Miscellaneous and contingency items Subtotal $40,000 F. MASONRY WALL MAINTENANCE 1. Clean brick, replace broken brick, tuckpoint masonry, 582,000 caulk windows and doors, and paint 8,000 2. Miscellaneous and contingency items Subtotal $90,000 G. DOORS AND WOWS 1. Replace nonmatching sashes, repair windows and doors, $22,000 repair and/or replace sills 2 000 2. Miscellaneous and contingency items $24,000 Subtotal H. REPLACE STORM WINDOWS AND ADD STORM DOORS $2 TOTAL (ITEMS A - H) 830 f iA OI `ii..!13 T O l k}`i, �. , 1 'a { IS =110V 93 33096 `Sti d 196251-0 I . . • •4 . .0'. lil. . "..1.*• , , ' APTIFiliLi '.,U' ,°. ' 1 '• f i .Pr• ..A.'. . . •.,„1 •:-.. . tat_tokir: [ . ..,- ...0 rks'A.1'. , ' • • • . P.y ,,, ,O., . &Jr.1 . CTN * • • Irf - I" 1. : rir, ,•7 ..!kr.:,. , .• 4,-,015., ,,I: • .) ' '1,Yi 6: ; 1.1 . vi ••, " ,....._ I .04 , -_,. - ..... • ••• c-•; rrl ` i,:ij';-1 1 i';'"i • •• •' l',•;4,k. .... Al.•1 . i' ' - : ! ,- 1.9.,-.. ..: • • . . •s.etc .. ,.:-.,fle. - C Pu • ;MI i C.)..s-7 aN ..! ,...,4 1,21.,.jy••Ai A 4.'1. i mug t,!)41 • 1 , . . ..1.! 1',/, '•4 'i i if,'.• I 1"!111 .1.1.11•!...14 f'.' • .14 ' •'•'...• r',:••%1Y 1.1'..1=1441', '1.'-i".1e4 !..1' i . - . I :- ."' 7 • -' 4 li.J...' I S'. ' • :0(;7..1 i . . . 1 Vykyr c*. .- g-. - ••( ... , .111.1ii '...'.:V ‘''.. IS i ii;:il '1 -I '..' l'i.' . 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HODGE; JULIE K. ) csrn HODGE and MICHAEL HODGE ) • r�r^ CONSTRUCTION COMPANY, ) -' Defendants . ) Plaintiffs demand a trial by jury of the issues in this cause. MEARDON, SUEPPEL, DOWNER & HAYES P.L. C. r '� BY /I t. Wil 1- / Mear.on 000003619 BY al— J lit% Charles A. Meardon 00(701 122 South Linn Street Iowa City, Iowa 52240 Telephone : 319/338-9222 ATTORNEYS FOR PLAINTIFF \ Ao1 ')•\1. It l-1 W ts :11 5z 33096 p � y..[t END OF CASE FILE