Improvement District Development Agreement
EXECUTION COPY
IMPROVEMENT DISTRICT DEVELOPMENT AGREEMENT
by and between the
CITY OF SALINA, KANSAS
and
RIFFEL DEVELOPMENT CO., INC.
DATED AS OF APRIL 12,2010
7thrC
Section 1.01.
Section 1.02.
Section 2.01
Section 2.02.
Section 2.03.
Section 3.01.
Section 3.02.
Section 3.03.
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 4.06.
Section 4.07.
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
TABLE OF CONTENTS
IMPROVEMENT DISTRICT DEVELOPMENT AGREEMENT
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ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION
Rules of Construction..... ............... ................ ................. ........... ........................ ............... 1
Definitions of Words and Terms .......................................................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES
Representations of City .. ............... ................................... ................................................5
Representations of the Developer... ........... ....................... .............................. ....... ........... 5
Conditions to the Effective Date of this Agreement ......................................................... 5
ARTICLE III THE IMPROVEMENT DISTRICT
Creation of the Improvement District.......... ............................... ........... ....... ....................7
Special Assessments ............... ........................ ...... ..................................... ....................... 7
City Expenses..... ................... ... ................. ......................... .......... ....... ........................ .....7
ARTICLE IV CONSTRUCTION OF IMPROVEMENTS
Design and Engineering of the Improvements ................................................................. 8
Construction of the Improvements ................................. ..................................................8
Rights-of-Way and Easements.................. .................... .......... .............. ............ ................ 9
Dedication of Improvements ..................... ............... ............... ........ ............. .................... 9
Completion of Improvements ......................... ............ ........... ........................... ......,....... 10
Rights of Access................... ............... .............. ...................................... ....................... 10
Certificate of Full Completion....... ..................... ..................... ................................. ...... 10
ARTICLE V REIMBURSEMENT OF IMPROVEMENT COSTS
Improvement Costs, Generally........... ...................... .............. ......... .... ........................... 11
Developer to Advance Costs............ .................................... ...... ............... ...................... 11
City's Obligation to Reimburse Developer..................................................................... 11
Developer Reimbursement Process ................................................................................ 11
Right to Inspect and Audit..............................................................................................12
ARTICLE VI IMPROVEMENT DISTRICT OBLIGATIONS
Section 6.01. Security for the Improvement District Obligations ........................................................ 12
Section 7.01. Transfer of Obligations ................................................................................................... 13
ARTICLE VII ASSIGNMENT: TRANSFER
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Section 8.01.
Section 8.02.
Section 8.03.
Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
, Section 9.06.
ARTICLE VIII GENERAL COVENANTS
Indemnification of City ...................... ................... .............. ............ ............................... 13
Insurance.................................. ..... ..................... ............................. ........ .......... ......... ..... 14
Non-liability of Officials, Employees and Agents ofthe City ........................................14
ARTICLE IX DEFAULTS AND REMEDIES
Developer Event of Default............................... ........................ .....;........................ ....... 15
City Event of Default.......... .............. .............. .................................................... ....... ..... 15
Remedies Upon a Developer Event of Default...............................................................15
Remedies Upon a City Event of Default ........................................................................16
Excusable Delays........... ....................... ............................................ .......... .................... 17
Legal Actions.. ............ .............. ............. ............ ....................................... ...................... 17
ARTICLE X GENERAL PROVISIONS
Section 10.01. . Mutual Assistance........................................................................................................... 17
Section 10.02. Effect of Violation of the Terms and Provisions of this Agreement; No
Partnership .......................... ...... ..................................... ..................... ......... .... ..... ....... 17
Section 10.03. Time of Essence..............................................................................................................17
Section 10.04. Amendments............. ............... ................. ................ ......... ........ ............ ................ ......... 17
Section 10.05. Agreement Controls........................................................................................................17
Section 10.06. Conflicts of Interest ...... ........................................................ ........... ......... ...................... 18
Section 10.07. Term.................... ..... .... ........................... ..................... ................ ............. ......... ....... ...... 18
Section 10.08. Validity and Severability ............................................................. ................................... 18
Section 10.09. Required Disclosures. ..................................................................................................... 18
Section 10.10. Tax Implications ............................................................................................................. 18
Section 10.11. Authorized Parties ........................................................................................................;. 18
Section 1 0.12. Notice ........... .................................. ..... ................................... ......... ......... ........... ........... 19
Section 10.13. Kansas Law .................................................................................................................... 19
Section 10.14. Counterparts ................................................................................................................... 19
Section 10.15. Recordation of Agreement .............................................................................................. 19
Section 10.16. Consent or Approval....................................................................................................... 19
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IMPROVEMENT DISTRICT DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the CITY OF SALINA, KANSAS, a
municipal corporation duly organized and existing under the laws of the State of Kansas as a city of the third
class (the "City"), and RIFFEL DEVELOPMENT CO., INC., a corporation organized and existing under
the laws of the State of Kansas (the "Developer," and together with the City, the "Parties"), and is dated as of
April 12,2010.
RECITALS
WHEREAS, on April 7, 2010, the Developer filed with the City Clerk the Improvement District
Petition; pursuant to K.S.A. 12-6aOI et seq. (the "Act"); and
WHEREAS, the Improvement District Petition requests that the City create the Improvement
District, construct the Improvements, assess the costs thereof against the Improvement District, and issue the
City's general obligation bonds to finance the costs of the Improvements; and
WHEREAS, the City and the Developer desire to enter into this Agreement to address issues related
to construction and financing of the Improvements.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and
agree1i1ents herein contained, and other good and valuable consideration, the receipt arid sufficiency of which
are hereby acknowledged, the Parties do hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Rules of Construction. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following rules of construction apply in
construing.the provisions of this Agreement.
A. The terms defined in this Article include the plural as well as the singular.
B. All accounting terms not otherwise defined herein shall have the meanings assigned to
them, and all computations herein provided for shall be made, in accordance with generally accepted
accounting principles.
C. All references herein to "generally accepted accounting principles" refer to such
principles in effect on the date of the determination, certification, computation or other action to be taken
hereunder using or involving such terms. .
D. All references in this instrument to designated "Articles," "Sections" and other
subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument as
originally executed.
E. The words "herein," "hereof' and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other subdivision.
F. The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
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G. The representations, covenants and recitations set forth in the foregoing recitals are
material to this Agreement and are hereby incorporated into and made a part of this Agreement as though
they were fully set forth in this Section. The provisions of the Petition, and such Improvement District
Proceedings, and the provisions of the Act, as amended, are hereby incorporated herein by reference and
made a part of this Agreement, subject in every case to the specific terms hereof.
Section 1.02. Definitions of Words and Terms. Capitalized words used in this Agreement
shall have the meanings set forth in the Recitals to this Agreement or they shall have the following
meanings:
"Act" means the General Improvement and Assessment Law, K.S.A. 12-6aOl et seq., as
amended and supplemented from time to time.
"Agreement" means this Improvement District Development Agreement, as amended as
supplemented from time to time.
"Applicable Law and Requirements" means any applicable constitution, treaty, statute, rule,
regulation, ordinance, order, directive,. code, interpretation, judgment, decree, injunction, writ,
determination, award, permit, license, authorization, directive, requirement or decision of or agreement
with or by Governmental Authorities.
"Bond Counsel" means Gilmore & Bell, P.C.
"Bond Proceeds" means proceeds of any Improvement District Obligations issued by the City,
less costs of issuance, capitalized interest and any required reserves.
"Certificate of Improvement District Costs" means a certificate relating to Improvement
District Costs in substantially the form attached hereto as Exhibit A.
"Certificate of Full Completion" means a certificate evidencing Full Completion of the
Improvements, in substantially the form attached hereto as Exhibit B.
"City" means the City of Salina, Kansas.
"City Event of Default" means any event or occurrence defined in Section 9.02 of this
Agreement.
"City Expenses" means the expenses described in Section 3.03 of this Agreement.
"City Representative" means the City Manager of the City, and such other person or persons at
the time designated to act on behalf of the City in matters relating to this Agreement.
"Construction Plans" means plans, drawings, specifications and related documents, and
construction schedules fot the construction of the Improvements, together with all supplements,
amendments or corrections, submitted by the Developer and approved by the City in accordance with this
Agreement.
"Developer" means Riffel Development Co., Inc., a corporation organized and existing under the
laws of the State of Kansas, and any successors and assigns approved pursuant to this Agreement.
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"Developer Event of Default" means any event or occurrence defined in Section 9.01 of this
Agreement.
"Developer Representative" means Norman D. Riffel and such other person or persons at the
time designated to act on behalf of the Developer in matters relating to this Agreement as evidenced by a
written certificate furnished to the City containing the specimen signature of such person or persons and
signed on behalf of the Developer.
"Estimated Special Assessments" means the City's estimate of the total amount of Special
Assessments to be levied against the Improvement District, based on actual Improvement Costs submitted
by the Developer and the City's estimate of additional costs related to the Improvements tp be levied
against the Improvement District pursuant to the Improvement District Proceedings. The Estimated
Special Assessments shall not exceed the Improvement Costs Cap without the written consent of all
owners of property within the Improvement District.
"Excusable Delays" means any delay beyond the reasonable control ofthe Party affected, caused
by damage or destruction by fire or other casualty, power failure, strike, shortage of materials,
unavailability of labor, delays in the receipt of Permitted Subsequent Approvals as a result of
unreasonable delay on the part of the applicable Governmental Authorities, adverse weather conditions
such as, by way of ill\lStration and not limitation, severe rail). storms or below freezing temperatures of
abnormal degree or abnormal duration, tornadoes, and any other events or conditions, which shall include
but not be limited to any litigation interfering with or delaying the construction of all or any portion of the
Improvements in accordance with this Agreement, which in fact prevents the Party so affected from
discharging its respective obligations hereunder.
"Governmental Approvals" means all plat approvals, re-zoning or other zoning changes, site
plan approvals, conditional use permits, variances, building permits, architectural review or other
subdivision, zoning or similar approvals required for the implementation of the Improvements and
consistent with the Petition, the Improvement District Proceedings, and this Agreement.
"Governmental Authorities" means any and all jurisdictions, entities, courts, boards, agencies,
commissions, offices, divisions, subdivisions, departments, bodies or authorities of any type of any
governmental unit (federal, state or local) whether now or hereafter in existence.
"Improvement Costs" means the costs of the Improvements, and such other costs to be charged
to the Improvement District as set forth in the Petition, including interest and costs of issuance related to
any Improvement District Obligations issued by the City to finance the Improvements, all determined in
accordance with the Act.
"Improvement Costs Cap" means $854,856.36 (the total cost of the Improvements, as shown in
the Petition and Preliminary Engineering Estimate and Feasibility Report related thereto, less estimated
costs of interest on Improvement District Obligations, costs of issuing Improvement District Obligations
and City engineering, inspection and administrative costs).
"Improvement District" means the improvement district to be established by the governing body of
the City pursuant to the Act and the Petition.
"Improvement District Obligations" means bonds, notes or other obligations, singly or in
series, issued by the City pursuant to the Act and in accordance with this Agreement.
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"Improvement District Proceedings" means any of the proceedings of the governing body of the
City creating the Improvement District and/or levying Special Assessments.
"Improvement District" means the improvement district to be established by the governing body of
the City pursuant to the Act and the Petition.
"Improvements" means the construction of the following improvements, all to be constructed as
shown on the Preliminary Engineering Estimate and Feasibility Report related to the petition:
The installation of curb & gutter, pavement, grading and drainage for approximately
1,609 lineal feet of Todd Circle and the associated accel-decel lanes and median
crossover improvements for approximately 850 lineal feet of 9th Street, (the "Street
Improvements").
The installation of approximately 122 lineal feet of six-inch water main, 2,229 lineal feet
of eight-inch water main, fire hydrants, valves, fittings, service connections and all
appurtenances thereto for water lines within right of way and/or utility easement (the
"Water System Improvements").
The installation of approximately 845 lineal feet of eight-inch sanitary sewer main,
service connections, manholes and all appurtenances thereto for sanitary sewer lines lying
within right of way and/or utility easement, (the "Sanitary Sewer Improvements").
The installation of approximately 1,857 lineal feet of storm sewer, inlets, and all
appurtenances thereto for storm sewer lines lying within right of way and/or drainage
easement, (the "Drainage Improvements").
"Permitted Subsequent Approvals" means the building permits and other governmental
approvals customarily obtained prior to construction which have not been obtained on the date that this
Agreement is executed, which the City or other governmental entity has not yet determined to grant.
"Petition" means the petition submitted by' the Developer to the City Clerk on April 7, 2010,
requesting the construction of the Improvements, as further described therein, and that the costs of such
improvements be assessed against the property described therein, all in accordance with the Act.
"Plans" means site plans, Construction Plans and all other Governmental Approvals necessary to
construct the Improvements in accordance with City code, applicable laws of Governmental Authorities
and this Agreement.
"Prepayment Period" means a period of time within 30 days from the publication date of any
ordinance levying Special Assessments.
"Related Entity" means any individual or legal entity related to the Developer, determined in
accordance with federal tax regulations.
"Special Assessments" means any special assessment levied or proposed to be levied against any
property within the Improvement District, as determined in accordance with the Act and the Improvement
District Proceedings.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations of City. The City makes the following representations and
warranties, which are true and correct on tq.e date hereof:
A. Due Authoritv. The City has full constitutional and lawful right, power and authority,
under current applicable law, to execute and deliver and perform the terms and obligations of this
Agreement, and this Agreement has been duly and validly authorized and approved by all necessary City
proceedings, fmdings and actions. Accordingly, this Agreement constitutes the legal valid and binding
obligation of the City, enforceable in accordance with its terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of the terms and conditions
hereof do not and will- not conflict with or result in a breach of any of the terms or conditions of any
agreement or instrument to which it is now a party, and do not and Will not constitute a default under any
of the foregoing.
C. No Litigation. There is no litigation, proceeding or investigation pending or, to the
knowledge of the City, threatened against the City with respect to the Petition or this Agreement. In
addition, no litigation, proceeding or investigation is pending or, to the knowledge of the City, threatened
against the City seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of
this Agreement or which would in any manner challenge or adversely affect the existence or powers of
the City to enter into and carry out the transactions described in or contemplated by the execution,
delivery, validity or performance by the City of the terms and provisions ofthis Agreement.
D. Governmental or Corporate Consents. No consent or approval is required to be obtained
from, and no action need be taken by, or document filed with, any governmental body or corporate entity
in connection with the execution and delivery by the City of this Agreement.
E. No Default. No default or City Event of Default has occurred and is continuing, and no
event has occurred and is continuing which with the lapse of time or the giving of notice, or both, would
constitute a default or an event of default in any material respect on the part of the City under this
Agreement.
Section 2.02. Representations of the Developer.
The Developer makes the following representations and warranties, which are true and correct on
the date hereof:
A. Due Authority. The Developer has all necessary power and authority to execute and
deliver and perform the terms and obligations of this Agreement and to execute and deliver the documents
required of the Developer herein, and such execution and delivery has been duly and validly authorized
and approved by all necessary proceedings of the Developer. Accordingly, this Agreement constitutes the
legal valid and binding obligation of the Developer, enforceable in accordance with its terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of the terms and conditions
hereof do not and will not conflict with or result in a breach of any of the terms or conditions of any
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corporate or organizational restriction or of any agreement or instrument to which it is now a party, and
do not and will not constitute a default under any of the foregoing.
C. No Litigation. No litigation, proceeding or investigation is pending or, to the knowledge
of the Developer, threatened against the Improvements, the Project, the Developer or any officer, director,
member or shareholder ofthe Developer. In addition, no litigation, proceeding or investigation is pending
or, to the knowledge of the Developer, threatened against the Developer seeking to restrain, enjoin or in
any way limit the approval or issuance and delivery of this Agreement or which would in any manner
challenge or adversely affect the existence or powers of the Developer to enter into and carry out the
transactions described in or contemplated by the execution, delivery, validity or performance by the
Developer, of the terms and provisions of this Agreement.
D. No Material Change. (l) The Developer has not incurred any material liabilities or
entered into any material transactions other than in the ordinary course of business except for the
transactions contemplated by this Agreement and (2) there has been no material adverse change in the
business, financial position, prospects or results of operations of the Developer, which could affect the
Developer's ability to perform its obligations pursuant to this Agreement.
E. Governmental or Corporate Consents. No consent or approval is required to be obtained
from, and no action need be taken by, or document filed with, any governmental body or corporate entity
in connection with the execution, delivery and performance by the Developer of this Agreement, other
than Permitted Subsequent Approvals.
F. No Default. No default or Developer Event of Default has occurred and is continuing,
and no event has occurred and is continuing which with the lapse of time or the giving of notice, or both,
would constitute a default or an event of default in any material respect on the part of the Developer under
this Agreement, or any other material agreement or material instrument to which the Developer is a party
or by which the Developer is or may be boUnd.
G. Aoorovals. Except for Permitted Subsequent Approvals, the Developer has received and
is in good standing with respect to all certificates, licenses, inspections, franchises, consents, immunities,
permits, authorizations and approvals, governmental or otherwise, necessary to conduct and to continue to
conduct its business as heretofore conducted by it and to own or lease and operate its properties as now
owned or leased by it. Except for Permitted Subsequent Approvals, the Developer has obtained all
certificates, licenses, inspections, franchises, consents, immunities, permits, authorizations and approvals,
governmental or otherwise, necessary to acquire, construct, equip, operate and maintain the
Improvements. The Developer reasonably believes that all such certificates, licenses, consents, permits,
authorizations or approvals which have not yet been obtained will be obtained in due course.
H. Construction Permits. Except for Permitted Subsequent Approvals, all governmental
permits and licenses required by applicable law to construct, occupy and operate the Improvements have
been issued and are in full force and effect or, if the present stage of development does not allow such
issuance, the Developer reasonably believes, after due inquiry of the appropriate governmental officials,
that such permits and licenses will be issued in a timely manner in order to permit the Improvements to be
constructed.
I. Compliance with Laws. The Developer is in compliance with all valid laws, ordinances,
orders, decrees, decisions, rules, regulations and requirements of every duly constituted governmental
authority, commission and court applicable to any of its affairs, business, operations as contemplated by
this Agreement.
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J. Other Disclosures. The information furnished to the City by the Developer in connection
with the matters covered in this Agreement are true and correct and do not contain any untrue statement of
any material fact and do not omit to state any material fact required to be stated therein or necesswy to make
any statement made therein, in the light of the circumstances under which it was made, not misleading.
Section 2.03. Conditions to the Effective Date of this Agreement. Contemporaneously with the.
execution of this Agreement, and as a precondition to the effectiveness of this Agreement, the Developer
shall provide to the City the Security for the Improvement District Obligations set forth in Section 6.01.
ARTICLE III
THE IMPROVEMENT DISTRICT
Section 3.01. Creation of the Improvement District.
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A. The Developer has taken all actions required by the Act to present the Petition to the City
Council. The Developer agrees to cooperate in good faith to provide such additional information, as
deemed necessary by the City, to allow for full consideration of the Petition by the City Council.
B. The Parties acknowledge and agree that the creation of an improvement district by the
City is a legislative act, that the City cannot agree by contract to take future legislative action, and that the
City will diligently consider the Petition in good faith pursuant to the Act and the terms of this
Agreement.
C. The Developer hereby agrees to waive any rights that it may have pursuant to state
statute, the Kansas Constitution, the United States Constitution, or as otherwise provided by law to object
to any Special Assessments requested in the Petition and imposed pursuant to the Act. Developer
acknowledges and agrees that this waiver is freely given and with full knowledge of the extent of all
statutory, constitutional or other legal rights being waived thereby, and is given in consideration of the
City forming the Improvement District and assisting in providing for the financing and construction of the
Improvements.
Section 3.02. Special Assessments. Upon (a) completion of the Improvements, as evidenced
by the City's execution of the Certificate ofFutl Completion pursuant to Section 4.07 hereof, and (b) the
Developer's submission of all Certificates of Improvement Costs pursuant to Section 5.04 hereof, the
City shall initiate proceedings pursuant to the Act to levy Special Assessments against property within the .
Improvement District. The Special Assessments shall be payable in fifteen (15) equal annual
installments. The City shall allow all property owners within the Improvement District an opportunity to.
prepay all or any portion of such Special Assessments within the Prepayment Period.
Section 3.03. City Expenses. The Developer acknowledges that the City does not have a
source of funds to finance costs incurred for non-employee legal, financial and planning consultants or for
direct out-of-pocket expenses and other reasonable costs resulting from services rendered to the
Developer and the City to review, evaluate, process and consider the Petition and this Agreement (the
"City Expenses"). The Developer shall pay to the City all City Expenses. The City Expenses may be
chargeable to the Improvement District and shall be approved for reimbursement as such by the City (but
only from proceeds of Improvement District Obligations and only to the extent such amounts together
with the actual Improvement Costs do not exceed the Improvement Costs Cap), except for (i) any
amounts attributable to the preparation and review of any agreements between the Developer and the City
or among the Developer, the City and any third party, to the extent such agreements are related to the
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Developer's reimbursement to the City or any third party for all or any portion of any costs to be assessed
against the City's or such third party's property as a result of the Improvement District and (ii) any
amounts that are not "costs" as defmed by the Act. The Developer acknowledges that the actual fees and
expenses of the Developer in negotiating and entering into this Agreement are not reimbursable costs
pursuant to the Act.
ARTICLE IV
CONSTRUCTION OF IMPROVEMENTS
Section 4.01. Design and Engineering of the Improvements.
A. The Developer has submitted and the City has approved Construction Plans for the
Improvements pursuant to City Code. All Improvements shall be designed, engineered, constructed, and
installed in accordance with all Applicable Law and Requirements of the City. The Construction Plans shall
be in sufficient completeness and detail to show that construction will be in conformance with the Petition,
the Improvement District Proceedings and this Agreement. All plans, specifications, contracts and change
orders related to the Improvements shall be approved by the City Engineer.
B. All costs associated with the preparation of the Plans for the Improvements shall be paid by
the Developer, but shall be reimbursable from proceeds of the Improvement District Obligations in the
manner provided by Article V hereof.
C. Any firm preparing Plans for the Improvements shall receive prior written approval of the
City Engineer on behalf of the City.
Section 4.02. Construction of the Improvements. All Improvements shall be designed,
engineered and constructed by the Developer as agent for the City. The Developer agrees that all
construction, improvement, equipping, and installation work on the Project shall be done in accordance with
the Petition, the Improvement District Proceedings, Construction Plans and related documents to be approved
by the City in compliance with City Code. The Developer, as agent for the City, shall comply with the
following requirements:
A. Construction Permits and Approvals. Before commencement of construction or
development of any work or Improvements, the Developer shall, at its own expense, secure or cause to be
secured any and all permits and approvals which may be customarily required by the City and any other
governmental agency having jurisdiction as to such construction, development or work. The City shall
cooperate with and provide all usual assistance to the Developer in securing these permits and approvals, and
shall diligently process, review and consider all such permits and approvals as may be required by law;
except provided that the City shall not be required to issue any such permits or approval for any portion of the
Improvements not in conformance with the Petition or this Agreement.
B. Engineer's Estimate. Before the Developer shall enter into any contract for the
Improvements, an estimate of the cost of the Improvements shall be prepared by the City Engineer and
submitted to the City Commission. The Developer shall not enter into any contract for construction of the
Improvements if the price exceeds the amount set forth in such estimate of the City Engineer.
C. Bonds. The Developer or the Developer's contractor(s) shall provide performance
bond(s) ("Performance Bond") and statutory public works bond(s) required by K.S.A. 60-1111 ("Payment
Bond") prior to commencement of construction of the Improvements, as follows:
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(1) PERFORMANCE BOND. A surety bond, running independently to both the
City and the Developer, conditioned upon the prompt, full, and complete performance by the
contractor as principal of its covenants, obligations, and agreements as contained in the contract
documents; and further conditioned that for a period of no less than one year after the City's final
acceptance of the Improvements as.a whole (as indicated on the "Certificate of Completion"), the
contractor, at its expense and free of charge to the City or the Developer, shall make good all
defects in materials or workmanship or any improper, imperfect, or defective preparation of the
ground upon which such improvements are constructed.
(2) PAYMENT BOND. A surety bond running to the state of Kansas, conditioned
that the contractor as principal shall pay all indebtedness incurred for labor, supplies, equipment,
and materials furnished in making the improvements called for by the contract documents.
Each bond shall be in an amount at least equal to the contract price and shall remain in effect until no less
than one year after the City's fmal acceptance of the Improvements as a whole. The form of each bond
shall be subject to the approval of the City. Each bond shall be executed by such sureties as are
authorized to conduct business in the state of Kansas. All bonds signed by an agent must be accompanied
by a certified copy of the agent's authority to act. A Performance Bond shall be delivered to the City
Clerk. A Payment Bond shall be filed with the Clerk of the Saline County District Court in accordance
with K.S.A. 60-1111 (b) and a file stamped copy delivered to the City Clerk. The premiums for such
bonds shall constitute costs chargeable to the Improvement District. The Developer shall indemnify the
City and its officers and employees for any damage resulting from failure of the Developer to provide the
bonds required under this subsection.
D. Antidiscrimination During Construction. The Developer, for itself, its successors and
assigns, and any contractor with whom the Developer has contracted for the performance of work on the
Improvements, agrees that in the construction, renovation, improvement, equipping, repair and installation of
the Improvements provided for in this Agreement, the Developer shall not discriminate against any employee
or applicant for employment because of race, color, creed, religion, age, sex, marital status, disability,
national origin or ancestry.
E. Cost Overruns. The Parties acknowledge that the estimated and probable costs of the
Improvements included in the Petition are based upon calculations prepared by the Developer. The
Improvements shall be constructed in accordance with the estimated and probable costs set forth in the
Petition. The Parties further acknowledge that the City may not impose Special Assessments for any cost in
excess of the Improvement Costs. The Developer shall pay for all Improvement Costs that exceed the
Improvement Costs Cap. .
Section 4.03. Rights-of-Way and Easements. Developer will provide or cause to be provided,
in a form suitable for recording in the real property records of Saline County, Kansas, within ten (10) days
after written demand by the City, all rights-of-way and easements across or encumbering the respective
portion of the property necessary for the construction, ownership and operation of the Improvements at no
cost to the City. All Improvements shall be located within standard storm drainage and utility easements or
rights-of-way dedicated to public use and constructed in compliance with all Applicable Law and
Requirements.
Section 4.04. Dedication of Improvements. The Improvements will be dedicated to the City
once the Improvements are completed. The Parties acknowledge that any Improvements which remain
private in nature cannot be financed under the Act, and cannot be paid for with the proceeds of tax exempt
bonds or from Special Assessments. The City shall not be obligated to accept dedication of any
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Improvements Wltil the City has verified that the applicable Improvements have been built in accordance with
all Applicable Law and Requirements; Wltil the City has verified that the Improvements have been built in
accordance with the specifications approved by it; and Wltil the City has issued a Certificate of Full
Completion for the Improvements to be dedicated.
Section 4.05. Completion of Improvements.
A. Development Schedule. The Developer shall commence construction of the Improvements
in good and workmanlike manner in accordance with the terms of this Agreement. The Developer shall
cause the Improvements to be completed with due diligence. Upon reasonable advance notice, the Developer
shall meet with the City to review and discuss the design and construction of the Improvements in order to
enable the City to. monitor the status of construction and to determine that the Improvements are being
performed and completed in accordance with this Agreement.
B. Continuation and Completion. Subject to Excusable Delays, once the Developer has
commenced construction of the Improvements, the Developer shall not permit cessation of work on the
Improvements for a period in excess of 45 consecutive days or 90 days in the aggregate without prior written
consent of the City.
C. No Waiver. Nothing in this Agreement shall constitute a waiver of the City's right to
consider and approve or deny Governmental Approvals pursuant to the City's regulatory authority as
provided by City Code and applicable state law.
Section 4.06. Rights of Access. Representatives of the City shall have the right of access to the
Improvements, without charges or fees, at normal construction hours during the period of construction, for
the purpose of ensuring compliance with this Agreement, including, but not limited to, the inspection of the
work being performed in constructing, renovating, improving, equipping, repairing and installing the
Improvements, so long as they comply with all safety rules. Representatives of the City shall conduct all
inspections the City deems necessary to ensure the Developer's construction of the Improvements in
accordance with the Construction Plans and City Code. Except in case of emergency, prior to any such
access, such representatives of the City will check in with the on-site manager. Such representatives of the
City shall carry proper identification, shall insure their own safety, assuming the risk of injury, and shall not
interfere with the construction activity.
Section 4.07. Certificate of Full Completion.
A. Promptly after completion of the Improvements in accordance with the provisions of this
Agreement, the Developer may submit a Certificate of Full Completion to the City. The Certificate of Full
Completion shall be in substantially the form attached as Exhibit B. The City shall, within ten (10) days
following delivery of the Certificate of Full Completion, complete such inspections as it deems necessary to
veriiY to its reasonable satisfaction the accuracy of the certifications contained in the Certificate of Full
Completion. The City's execution of the Certificate of Full Completion shall constitute evidence of the
satisfaction of the Developer's agreements and covenants to construct the Improvements.
B. The City shall have the right to withhold delivery of the Certificate of Full Completion Wltil
such time as the Developer has completed the Improvements in accordance with the Improvement District
Proceedings, the Construction Plans, and all Applicable Law and Requirements.
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ARTICLE V
REIMBURSEMENT OF IMPROVEMENT COSTS
Section 5.01. Improvement Costs, Generally. In consideration for the Developer's agreement
to construct the Improvements, the City agrees to reimburse the Developer for Improvement Costs, up to the
Improvement Costs Cap, subject to the terms of the Improvement District Proceedings, the Act, and this
Agreement.
Section 5.02. Developer to Advance Costs. The Developer agrees to advance all Improvement
Costs as necessary to complete the Improvements, until such time as the City issues Improvement District
Obligations in accordance with Article VI hereof. After the City has issued Improvement District
Obligations, the Developer may request that the City directly pay Improvement District Costs in accordance
with Section 5.04 hereof. . Within five (5) business days of the City's written request, the Developer shall
deposit with the City the fimds set forth in Section 3.03 for the purpose of reimbursing the City for City
Expenses related to planning, legal, administrative and other costs associated with the Improvements, the
Improvement District and this Agreement.
Section 5.03. City's Obligation to Reimburse Developer. Subject to the terms. of this
Agreement and the conditions in this Section, the City agrees to reimburse Developer for Improvement Costs
in a total amount not to exceed the Improvement Costs Cap less any Improvement Costs incurred by the City
and interest and costs of issuance related to the Improvement. District Obligations. Developer may be
reimbursed for Improvement Costs only from the proceeds of Improvement District Obligations as provided
in Articles V and VI hereof, and the City shall have no obligation to reimburse Developer until proceeds of
Improvement District Obligations are available. The Parties agree that all reimbursement to the Developer
shall be made only from the proceeds of Improvement District Obligations and not from any other source.
Nothing in this Agreement shall obligate the City to issue Improvement District Obligations to reimburse
Developer for any cost that is not both an Improvement Cost and a "cost" as defmed by the Act.
Section 5.04. Developer Reimbursement Process.
A. All requests for reimbursement and/or payment of Improvement Costs shall be made in a
Certificate of Improvement Costs in substantial compliance with the form attached hereto as Exhibit A and
shall all be submitted at one time together with the Certificate of Full Completion.
(l) With respect to costs requested to be reimbursed, the Developer shall provide
itemized invoices, receipts or other information reasonably requested, if any, to confirm that any
such cost has been paid and qualifies as an Improvement Cost, and shall further provide a summary
sheet detailing the costs requested to be reimbursed. Such summary sheet shall show the date such
cost was paid by the Developer, the payee, a brief description of the type of cost paid, the amoUnt
paid. The Developer shall provide such additional information as reasonably requested by the City ;
to confirm that such costs have been paid and qualify as Improvement Costs.
(2) With respect to costs required to be paid directly by the City, the Developer shall
provide itemized invoices to confirm that any such cost qualifies as an Improvement Cost, and shall
further provide a summary sheet detailing the costs requested to be paid. Such summary sheet shall
show the payee, a brief description of the type of cost, the amount to be paid, and the payment due
date. The Developer shall provide, or shall cause its contractors to provide, such additional
information as reasonably requested by the City to confirm that the such costs qualify as
Improvement Costs.
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B. The City reserves the right to have its engineer or other agents or employees inspect all work
in respect of which a Certificate of Improvement Costs is submitted, to examine the Developer's and others'
records relating to all expenses related to the invoices to be paid, and to obtain from such parties such other
information as is reasonably necessary for the City to evaluate compliance with the terms hereof.
C. The City shall have 30 calendar days after receipt of any Certificate of Improvement Costs
to review and respond by written notice to the Developer. If the submitted Certificate of Improvement Costs
and supporting documentation demonstrates that (1) the request relates to the Improvement Costs; (2) the
expense has been paid or is due and owing to a third party; (3) Developer is not in material default under this
Agreement; and (4) there is no fraud on the part of the Developer, then the City shall approve the Certificate
of Improvement Costs and make, or cause to be made, reimbursement or payment from the proceeds of
Improvement District Obligations, within fifteen (15) days of the City's approval of the Certificate of
Improvement Costs. If the City reasonably disapproves of the Certificate of Improvement Costs, the City
shall notify the Developer in writing of the reason for such disapproval within such 3D-day period. Approval
of the Certificate of Improvement Costs will not be unreasonably withheld, conditioned or delayed.
Section 5.05 Right to Inspect and Audit. The Developer agrees that, up to one year after
completion of the Improvements, the City, with reasonable advance notice and during normal business hours,
shall have the right and authority to review, audit, and copy, from time to time, all the Developer's books and
records relating to the Improvement Costs (including, but not limited to, all general contractor's sworn
statements, general contracts, subcontracts, material purchase orders, waivers of lien, paid receipts and
invoices).
ARTICLE VI
SECURITY FOR IMPROVEMENT DISTRICT OBLIGATIONS
Section 6.01. Security for the Improvement District Obligations.
A. The Improvement District Obligations shall be general obligations of the City, payable as to
both principal and interest in part from special assessments levied upon the property benefited by the
construction of the Improvements, or from general obligation bonds of the Issuer and, ifnot so paid, from ad
valorem taxes which may be levied without limitation as to rate or amount upon all the taxable tangible
property, real and personal, within the territorial limits of the City. The full faith, credit and resources of the
City shall be irrevocably pledged for the prompt payment of the principal of arid interest on the
Improvement District Obligations as the same become due.
B. In consideration for the City entering into this Agreement and issuing its Improvement
District Obligations, and as additional security for such Improvement District Obligations and to secure
prompt payment of the Special Assessments, the Developer shall provide certain financial commitments to
the City (the "Developer's Financial Commitment").
1. The Developer's Financial Commitment shall be in one of the following forms:
a. cash, cashier's check or an escrow account equal to 20% of the total Special
Assessments levied against all properties within the Improvement District; or
b. an irrevocable letter of credit equal to 35% of the total Special Assessments
levied against all properties within the Improvement District.
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2. The Developer's Financial Commitment may be applied annually to satisfy the
principal of and interest on the Improvement District Obligations, if any Special Assessments are not
paid when due. The Developer's Financial Commitment shall be released upon the request of the
Developer at the earlier of (i) five (5) years from the date the governing body of the City adopts an
ordinance levying the Special Assessments or (ii) the date when certificates of occupancy are issued
for at least three of the lots within the Improvement District.
ARTICLE VII
ASSIGNMENT; TRANSFER
Section 7.01. Transfer of Obligations.
A. The rights, duties and obligations of the Developer contained herein may not be assigned, in
whole or in part, to another entity, without the prior approval of the City Council by resolution following
verification by the City Attorney that the assignment complies with the tenns of this Agreement. Any
proposed assignee shall have qualifications and financial responsibility, as reasonably detennined by the City
Manager, necessary and adequate to fulfill the obligations of the Developer with respect to the portion of the
Improvement District being transferred. Any proposed assignee shall, by instrument in writing, for itself and
its successors and assigns, and expressly for the benefit of the City, assume all of the obligations of the
Developer under this Agreement and agree to be subject to all the conditions and restrictions to which the
Developer is subject (or, in the event the transfer is of or relates to a portion of the Improvement District, such
obligations, conditions and restrictions to the extent that they relate to such portion). The Developer shall not
be relieved from any obligations set forth herein unless and until the City specifically agrees to release the
Developer. The Developer agrees to record all assignments in the office of the Register of Deeds of Saline
County, Kansas, in a timely manner following the execution of such agreements.
B. The Parties' obligations pursuant to this Agreement, unless earlier satisfied, shall inure to
and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties as if
they were in every case specifically named and shall be construed as a covenant running with the land,
enforceable against the purchasers or other transferees as if such purchaser or transferee were originally a
party and bound by this Agreement. Notwithstanding the foregoing, no tenant of any part of the
Improvement District shall be bound by any obligation of the Developer solely by virtue of being a tenant;
provided, however, that no transferee or owner of property within the Improvement District except the
Developer shall be entitled to any rights whatsoever or claim upon any rights of the Developer to
reimbursement of Improvement Costs as set forth herein, except as specifically authorized in writing by the
Developer.
'I"
ARTICLE VIII
GENERAL COVENANTS
Section 8.01. Indemnification of City.
A. Developer agrees to indemnify and hold the City, its employees, agents and independent
contractors and consultants (collectively, the "City Indemnified Parties") harmless from and against any
and all suits, claims, costs of defense, damages, injuries, liabilities, judgments, costs and/or expenses,
including court costs and reasonable attorneys fees, resulting from, arising out of, or in any way
connected with:
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L the Developer's actions and tmdertaking in implementation of the Improvements
or this Agreement; and
2. the negligence or willful misconduct of Developer, its employees, agents or
independent contractors and consultants in connection with the management, design,
development, redevelopment and construction of the Improvements.
3. any delay or expense resulting from any litigation filed against the Developer by
any member or shareholder of the Developer, any prospective investor, prospective partner or
joint venture partner, lender, co-proposer, architect, contractor, consultant or other vendor.
This section shall not apply to willful misconduct or negligence of the City or its officers, employees or
agents, independent contractors or consultants. This section includes, but is not limited to, any repair,
cleanup, remediation, detoxification, or preparation and implementation of any removal, remediation,
response, closure or other plan (regardless of whether tmdertaken due to governmental action) concerning
any haZardous substance or hazardous wastes including petroleum and its fractions as defined in (i) the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"; 42 U.S.C.
Section 9601, et seq.), (ii) the Resource Conservation and Recovery Act ("RCRA"; 42 U.S.C.
Section 6901 et seq.) and (Hi) Article 34, Chapter 65, K.S.A. and all amendments thereto, at any place
where Developer owns or has control of real property pursuant to any of Developer's activities under this
Agreement. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107 (e)
ofCERCLA to assure, protect, hold harmless and indemnify City from liability.
B. In the event any suit, action, investigation, claim or proceeding (collectively, an
"Action") is begun or made as a result of which the Developer may become obligated to one or more of
the City Indemnified Parties hereunder, anyone of the City Indemnified Parties shall give prompt notice
to the Developer of the occurrence of such event.
C. The right to indemnification set forth in this Agreement shall survive the termination of
this Agreement.
Section 8.02. Insurance.
A. At all times, the Developer shall maintain such insurance on the Developer's Property as
required by any lender(s) to the Developer.
B. During construction of the Improvements, the Developer or its agents shall maintain
insurance in favor of the City against all such risks and in such amounts, with such deductible provisions
as are customary with connection with the construction of similar improvements.
Section 8.03. Non-liability of Ofticials, Employees and Agents of the City. No recourse shall
be had for the reimbursement of the Improvement Costs or for any claim based thereon or upon any
representation, obligation, covenant or agreement contained in this Agreement against any past, present or
future official, officer, employee or agent of the City, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any
such officials, officers, employees or agents as such is hereby expressly waived and released as a
condition of and consideration for the execution of this Agreement.
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ARTICLE IX
DEFAULTS AND REMEDffiS
Section 9.01. Developer Event of Default. Except as further provided herein, and subject to
Section 9.05, a "Developer Event of Default" shall mean a default in the performance of any obligation
or breach of any covenant or agreement of the Developer in this Agreement (other than a covenant or
agreement, a default in the performance or breach of which is specifically dealt with elsewhere in this
Section), and continuance of such default or breach for Ii period of 30 days after City. has delivered to
Developer a written notice specifYing such default or breach and requiring it to be remedied; provided,
that if such default or breach cannot be fully remedied within such 30-day period, but can reasonably be
expected to be fully remedied and the Developer is diligently attempting to remedy such default or
breach, such default or breach shall not constitute an event of default if the Developer shall promptly
upon receipt of such notice diligently attempt to remedy such default or breach and shall thereafter
prosecute and complete the same with due diligence and dispatch.
Section 9.02. City Event of Default. Subject to Section 9.05, the occurrence and continuance
of any of the following events shall constitute a "City Event of Default" hereunder:
A. After closing of any Improvement District Obligations, the City fails to use the proceeds
of such Improvement District Obligations to reimburse the Developer within 30 days, and such delay is
not cured or corrected for a period of 45 consecutive days; or
B. Default in the performance of any obligation or breach of any other covenant or
agreement of the City in this Agreement (other than a covenant or agreement, a default in the performance
or breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 30 days after there has been given to the City by the Developer a written notice
specifYing such default or breach and requiring it to be remedied; provided, that if such default or breach
cannot be fully remedied within such 30-day period, but can reasonably be expected to be fully remedied
, and the City is diligently attempting to remedy such default or breach, such default or breach shall not
constitute an event of default if the City shall immediately upon receipt of such notice diligently attempt
to remedy such default or breach and shall thereafter prosecute and complete the same with due diligence
and dispatch.
Section 9.03. Remedies Upon a Developer Event of Default.
A. Upon the occurrence and. continuance of a Developer Event of Default, the City shall
have the following rights and remedies, in addition to any other rights and remedies provided under this
Agreement or by law: .
1. The City shall have the right to terminate this Agreement or terminate the
Developer's rights under this Agreement.
2. The City may pursue any available remedy at law or in equity (including specific
performance) by suit, action, mandatrtus or other proceeding to enforce and compel the
performance of the duties and obligations of the Developer as set forth in this Agreement, to
enforce or preserve any other rights or interests of the City under this Agreement or otherwise
existing at law or in equity and to recover any damages incurred by the City resulting from such
Developer Event of Default.
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B. Upon any Developer Event of Default, the City shall have no obligation to (i) reimburse
the Developer for any amounts advanced under this Agreement or costs otherwise incurred or paid by
Developer or (ii) issue any Improvement District Obligations.
C. If the City has instituted any proceeding to enforce any right or remedy under this
Agreement by suit or otherwise, and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the City, then and in every case the City and the Developer shall,
subject to any determination in such proceeding, be restored to their former positions and rights
hereunder, and thereafter all rights and remedies of the City shall continue as though no such proceeding
had been instituted.
D. The exercise by the City of anyone remedy shall not preclude the exercise by it, at the
same or different times, of any other remedies for the same default or breach. No waiver made by the
City shall apply to obligations beyond those expressly waived.
E. Any delay by the City in instituting or prosecuting any such actions or proceedings or
otherwise asserting its rights under this Section shall not operate as a waiver of such rights or limit it in
any way. No waiver in fact made by the City of any specific default by the Developer shall be considered
or treated as a waiver of the rights with respect to any other defaults, or with respect to the particular
default except to the extent specifically waived.
Section 9.04. Remedies Upon a City Event of Default.
A. Upon the occurrence and continuance of a City Event of Default, the Developer shall
have the following rights and remedies, in addition to any other rights and remedies provided under this
Agreement or by law:
1. The Developer shall have the right to terminate the Developer's obligations
under this Agreement;
2. The Developer may pursue any available remedy at law or in equity by suit,
action, mandamus or other proceeding to enforce and compel the performance of the duties and
obligations of the City as set forth in this Agreement, to enforce or preserve any other rights or
interests of the Developer under this Agreement or otherwise existing at law or in equity and to
recover any damages incurred by the Developer resulting from such City Event of Default.
B. If the Developer has instituted any proceeding to enforce any right or remedy under this
Agreement by suitor otherwise, and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Developer, then and in every case the Developer and the City
shall, subject to any determination in such proceeding, be restored to their former positions and rights
hereunder, and thereafter all rights and remedies of the Developer shall continue as though no such
proceeding had been instituted.
C. The exercise by the Developer of anyone remedy shall not preclude the exercise by it, at
the same or different times, of any other remedies for the same default or breach. No waiver made by the
Developer shall apply to obligations beyond those expressly waived.
D. Any delay by the Developer in instituting or prosecuting any such actions or proceedings
or otherwise asserting its rights under this paragraph shall not operate as a waiver of such rights or limit it
in any way. No waiver in fact made by the Developer of any specific default by the Developer shall be
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considered or treated as a waiver of the rights with respect to any other defaults, or with respect to the
particular default except to the extent specifically waived.
Section 9.05. Excusable Delays. Neither the City nor the Developer shall be deemed to be in
default of this Agreement because of an Excusable Delay.
Section 9.06. Legal Actions. Any legal actions related to or arising out of this Agreement
must be instituted in the District Court of Saline County, Kansas or, if federal jurisdiction exists, in the
United States District Court for the District of Kansas.
ARTICLE X
GENERAL PROVISIONS
Section 10.01. Mutual Assistance. The City and the Developer agree to take such actions,
including the execution and delivery of such documents, instruments, petitions and certifications as may
be reasonably necessary or appropriate to carry out the terms, provisions and intent of this Agreement and
to reasonably aid and assist each other in carrying out said terms, provisions and intent. Each party agrees
that all actions to be taken by it under this Agreement shall be taken diligently and in good faith.
Section 10.02. Effect of Violation of the Terms and Provisions of this Agreement; No
Partnership. The City is deemed the beneficiary of the terms and provisions of this Agreement, for and in
its own rights and for the purposes of protecting the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running with the land have
been provided. The Agreement shall run in favor of the City, without regard to whether the City has been,
remains or is an owner of any land or interest therein in the ImproveQlents or the Improvement District. The
City shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and
to maintain any actions or suits at law or inequity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Nothing
contained herein shall be construed as creating a partnership between the Developer and the City.
Section 10.03. Time of Essence. Time is of the essence of this Agreement. The Parties will
make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful
performance of this Agreement requires their continued cooperation.
Section 10.04. Amendments. This Agreement may be amended only by the mutual consent of
the Parties, by the adoption of a resolution of the City approving said amendment, as provided by la~,
and by the execution of said amendment by the Parties or their successors in interest. .
Section 10.05. Agreement Controls. The Parties agree that the Improvement District will be
implemented as agreed in this Agreement. This Agreement specifies the rights, duties and obligations of
the City and Developer with respect to constructing the Improvements, the payment of Improvement
Costs and the payment of certain Special Assessments. The Parties further agree that this Agreement
contains provisions that are in greater detail than as set forth in the Petition and the Improvement District
Proceedings. Nothing in this Agreement shall be deemed an amendment of the Improvement District
Proceedings. Except as otherwise expressly provided herein, this Agreement supersedes all prior
agreements, negotiations and discussions relative to the subject matter hereof and is a full integration of
the agreement of the Parties.
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Section 10.06. ConOicts ofInterest
A. No member of the City's governing body or of any branch of the City's government that has
any power of review or approval of any of the Developer's undertakings shall participate in any decisions
relating thereto which affect such person's personal interest or the interests of any corporation or partnership
in which such person is directly or indirectly interested. Any person having such interest shall immediately,
upon knowledge of such possible conflict, disclose, in writing, to the City the nature of such interest and seek
a determination with respect to such interest by the City and, in the meantime, shall no participate in any
actions or discussions relating to the activities herein proscribed.
B. The Developer warrants that it has not paid or given and will not payor give any officer,
employee or agent of the City any money or other consideration for obtaining this Agreement. The
Developer further represents that, to its best knowledge and belief, no officer, employee or agent of the City
who exercises or has exercised any functions or responsibilities with respect to the Improvements during his
or her tenure, or who is in Ii position to participate in a .decision making proceSS or gain insider information
with regard to the Improvements, has or will have any interest, direct or indirect, in any contract or
subcontract, or the proceeds thereof, for work to be performed in connection with the Improvements, or in
any activity, or benefit therefrom, which is part of the Improvements at any time during or after such person's
tenure.
Section 10.07. Term. Unless earlier terminated as provided herein, this Agreement shall remain in
full force and effect until such time as all Special Assessments are paid in full and all Improvement District
Obligations are no longer outstanding.
Section 10.08. Validity and Severability. It is the intention of the parties that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of State
of Kansas, and that the unenforceability (or modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable, or impair, the remainder of this Agreement. Accordingly, if
any provision of this Agreement shall be deemed invalid or unenforceable in whole or in part, this Agreement
shall be deemed amended to delete or modify, in whole or in part, if necessary, the invalid or unenforceable
provision or provisions, or portions thereof, and to alter the balance of this Agreement in order to render the
same valid and enforceable.
Section 10.09. Required Disclosures. The Developer shall immediately notify the City' of the" .
occurrence of any material event which would cause any of the information furnished to the City bY. the
Developer in connection with the matters covered in this Agreement to contain any untrue statement of
any material fact or to omit to state any material fact required to be stated therein or necessary to make
any statement made therein, in the light of the circumstances under which it was made, not misleading.
Section 10.10. Tax Implications. The Developer acknowledges and represents that (1) neither
the City nor any of its officials, employees, consultants, attorneys or other agents has provided to the
Developer any advice regarding the federal or state income tax implications or consequences of this
Agreement and the transactions contemplated hereby, and (2) the Developer is relying solely upon its own
tax advisors in this regard.
Section 10.11. Authorized Parties. Whenever under the provisions of this Agreement and
other related documents, instruments or any supplemental agreement, a request, demand, approval, notice
or consent of the City or'the Developer is required, or the City or the Developer is required to agree or to
take some action at the request of the other Party, such approval or such consent or such request shall be
given for the City, unless otherwise provided herein, by the City Representative and for the Developer by
any officer of Developer so authorized; and any person shall be authorized to act on any such agreement,
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request, demand, approval, notice or consent or other action and neither Party shall have any complaint
against the other as a result of any such action taken. The City Representative may seek the advice,
consent or approval of the City Council before providing any supplemental agreement, request, demand,
approval, notice or consent for the City pursuant to this Section.
Section 10.12. Notice. All notices and requests required pursuant to this Agreement shall be sent
as follows:
To the City:
To the Developer:
City Manager
City of Salina
300 West Ash Street
Salina, Kansas 67402
Riffel Development Co., Inc.
Attn: Norman D. Riffel
10919 Sapp Bros. Drive
Omaha, NE 68138
With a copy to: .
City Attorney
City of Salina
300 West Ash Street
Salina, Kansas 67402
or at such other addresses as the Parties may indicate in writing to the other either by personal delivery,
courier, or by registered mail, return receipt requested, with proof of delivery thereof. Mailed notices
shall be deemed effective on the third day after mailing; all other notices shall be effective when
delivered.
Section 10.13. Kansas Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Kansas.
Section 10.14. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same agreement.
Section 10.15. Recordation of Agreement. The Parties agree to execute and deliver an original
of this Agreement and any amendments or. supplements hereto, in proper form for recording and/or
indexing in the appropriate land or governmental records, including, but not limited to, recording in the
real estate records of Saline County, Kansas. This Agreement shall be recorded by the Developer, and
proof of recording shall be provided to the City.
Section 10.16. Consent or Approval. Except as otherwise provided in this Agreement,
whenever the consent, approval or acceptance of .either Party is required hereunder, such consent,
approval or acceptance shall not be unreasonably withheld, conditioned or unduly delayed.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THIS AGREEMENT has been executed as of the date first hereinabove written.
By:
(SEAL)
A ITEST:
~~
STATE OF KANSAS
)
)SS.
COUNTY OF SALINE
)
On lAlA " ~ 2010, before me, the, undersigned, a Notary Public in and for said state,
personally appeared AAron G. Ped<.. and L'€.ufu1f\ tlSt~ , proved to me on the basis of
satisfactory evidence to be the persons whose names are subscribed t<rthe within mstrument as Mayor and
City Clerk, respectively, of the CITY OF SALINA, KANSAS, the city of the third class therein named, and
acknowledged to me that they executed the Satne in their authorized capacities, and that by their signatures on
the instrument the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand ~d official seal.
~ .,,.1: L iUlix4-
~ Notary Public
My commission expires:
~
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THIS AGREEMENT has been executed as of the date first hereinabove written.
RIFFEL DEVELOPMENT CO., INC.,
a Kansas corporation
~fue~15~
STATEOF tV~fq gko.
COUNTYOF ~RPY
)
)SS.
)
On f.t..p (' \\.... ~ 2010, before me, the undersigned, a Notaty Public in and for said State,
personally appeared lJ "4<"~o,,\ b K,~..t.elwho proved to me on the basis of satisfactory evidence to be
the persons whose Dallies are subscribed to the within instrument as members of Riffel Development Co., Inc.
and acknowledged to me that they executed the same in their authorized capacities, and that by such person's
signature on the instrulllent the entity upon behalf of which Such persons acted, executed the instrulllent.
WITNESS my hand and official seal.
8RL.Mf -_ofNllllllSlll
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My commission expires:
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