Covenants Running With the Land
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/".""', REBECCA SEEMAN
f: ,,:.~.....~.e.~ ;\REGISTER OF DEEDS SALINE COUNTY KANSAS
{J^r;'''''';<},. Book: 121B Page: 548
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\..\..0 r:!~e./...l Receipt 0: 66316 a-J' Recording Fee: .32.00
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Date Recorded: 9/28/2010 1:23:51 PM .
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COVENANTS RUNNING WITH THE LAND
by
SOUTHVlEW PLAZA OF SALINA, LLC d/b/a GENESIS HEALTH CLUBS
for the benefit of
THE CITY OF SALINA, KANSAS
relating to
BUlLDINGCODECOMPL~CE
THESE COVENANTS are made and entered into the 20th day of September,
2010 by Southview Plaza of Salina, LLC, a Kansas limited liability company, d/b/a
Genesis Health Clubs ("Genesis") for the benefit of the City of Salina, Kansas ("City").
Recitals
A. Genesis owns the real estate located in Salina, Saline County, Kansas,
legally described on the attached and incorporated Exhibit A (the "Real Estate').
B. Genesis is in the process of completing a renovation and addition to the
improvements located on the Real Estate (the "Project') for the purpose constructing the
building in which the Salina location of the Genesis Health Clubs will be operated (the
"Facility"). Upon the application of Genesis' contractor, Rock Enterprises, Inc.
("Contractor"), the City issued a Commercial Building Permit for the construction of
footings and foundation for the Project on October 16, 2009 (the "Permit").
C. For purposes of compliance with the 2003 International Building Code as
adopted by the City (the "Code"), Genesis sought classification of the Project as an
"Unlimited Area Building" pursuant to Section 507 of the Code and represented its intent
to obtain "no-build" easements from adjoining property owners, Unified School District
No. 305 (the "District") and AutoZone, Inc. ("AutoZone"). In reliance upon those
representations, the City issued the Permit, subject to conditions, including condition no.
7, as follows:
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Phased pennitting has been approved in advance of securing no build
easements since an acceptable alternate construction has been identified
that can achieve code compliance without the need for no build easements.
No certificates of occupancy will be granted until the necessary no build
easements have been secured or code compliant construction has been
completed. '
D. The legal description of the no-build easement required from the District
is attached and incorporated as Exhibit B (the District No-build Easement"). The legal
description of the no-build easement required from AutoZone is attached and
incorporated as Exhibit C (the AutoZone No-build Easement") (collectively the "No-
build Easements").
E. Genesis has applied for an occupancy pennit for the Facility, but has
neither obtained the necessary no build easements from the District and AutoZone, nor
completed the alternate construction required to achieve code compliance without the
need for the No-build Easements ("Code-compliant Alternative Construction").
F. In the public interest of expediting the opening of the Facility to its local
members, for the reason that no structures are currently located within the area of either
of the N 0- Build Easements, and in order to allow Genesis additional time in which to
obtain the No-build Easements, the City is willing to regard these Covenants as a
temporary substitute for the No-build Easements for purposes of consideration of the
Facility as an Unlimited Area Building, subject to and conditional upon (a) the terms and
conditions of these Covenants and (b) Genesis acknowledgement that the City's
acceptance of these Covenants is entirely separate from and unrelated to any other
requirements of code compliance for the Project.
THEREFORE, the parties covenant and agree:
I. Covenant. Genesis covenants to either obtain all of the No-build
Easements by the earliest to occur of the following dates or events, or, time being of the
essence, to immediately co=ence and to diligently complete the retroactive
construction of Code-compliant Alternative Construction within ninety (90) consecutive
calendar days thereafter:
A. December 20,2010; or
B. The issuance of a building pennit for construction of a structure to
be located within sixty feet (60') of any point on the perimeter walls of the
Facility.
2. Temoorarv Substitute for No-Build Easements. The City accepts these
Covenants as a temporary substitute for the No-build Easements for purposes of
classification of the Facility as an Unlimited Area Building, subject to and conditional
upon the terms and conditions of these Covenants.
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Book~ 1218 Page~ 550
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3. Acknowledl!ement. Genesis acknowledges that the City's acceptance of
these Covenants as a temporary substitute for the No-build Easements is entirely separate
from and unrelated to any other requirements of code compliance relating to the Proj ect
and does not affect the City's duties, rights, or responsibilities relating to code application
or enforcement.
4. SecuritY.' Performance by Genesis of its obligations pursuant to these
Covenants shall be secured by a letter of credit ("LOC") in the amount of Two Hundred
Thousand ($200,000.00). The LOC shall be issued by a Kansas lending institution
approved by the City and in a form approved by the City and shall be delivered to the
City, as a condition precedent to the City's acceptance of these Covenants. The LOC
shall be subj ect to call by the City in the event of the failure of Genesis to perform any of
its obligations under Paragraph 1 of these Covenants. The City shall then direct
utilization of the proceeds in a manner determined by the City to best serve the public
interest in code compliance. Calling the LOC shall not be regarded as an election of
remedies by the City and shall not affect the City's ability to exercise any of its other
duties, rights, or responsibilities relating to code application or enforcement.
5. Release of claims. Genesis releases, indemnifies and holds the City
harmless from any claims arising from the City's enforcement of its rights hereunder,
including without limitation, any claims of lost profits from business interruption or
business reputation resulting from the potential necessity of implementing Code-
compliant Alternative Construction.
6. Bindinl! Effect. These covenants shall be binding upon Genesis, its
successors and assigns, and any parties claiming an ownership or possessory interest in
the Real Estate or the Facility for the reason that these Covenants shall be recorded and
indexed to the Real Estate in the records of the Saline County Register of Deeds and
SHALL BE BINDING UPON AND SHALL RUN WITH THE REAL ESTATE for
so long as the Facility exists on the Real Estate.
EXECUTED by the duly authorized officers of the parties hereto.
SOUTHVIEW PLAZA OF SALINA, LLC
d/b/a GENESIS HEALTH CLUBS
By:
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J04rtB. teven, President
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Bo"ok:" 1218 PaQe~ 551
CfIT OF~t7L-
By:
ATTEST:
By:
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SEDGWICK, ss:
n G. Peck, Mayor
This instrument was acknowledged before me on September~ 2010, by
John B. Steven as President of Southview Plaza of Salina, LLC d/b/a Genesis Health
Clubs.
M. . -)-112)20/2
y appomtment expires:
. ~.NOTARY PUBLIC - State of Kansas
Hi:IDI HUENERGARDT
'" ;:~;. {'llPl Expires :)j 12.120 I :J
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Notary Public
STATE OF KANSAS, COUNTY OF SALINE, ss:
This instrument was acknowledged before me on SePtembeJ.7?'~b 0, by Aaron
G. Peck as Mayor and Lieu Ann Elsey as City Clerk for the City of Salina, Kansas.
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My Appt. Expires
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Notary Public
My appointment expires: Lj l~ Iw/2..-
4
Book: 1218 Page: 552
EXHIBIT "A"
DESCRIPTION
PROPERTY LEGAL DESCRIPTION
~act ofland in the N.E. 1/4 of the N.E. 1/4 of Section 26, Township 14 South, Range 3
West of the Sixth Principal Meridian, more particularly described as follows:
Beginning at a point sixty (60) feet west and twenty (20) feet south of the NE comer of said
Section 26, said point of beginning being on the west right-of-way line of U. S. Highway 81;
thence in a southerly direction along the west right-of-way line ofU. S. Highway 81 a distance of
six hundred ninety-eight and fifty-five hundredths (698.55) feet to a point on the north property
line of Charlotte Street extended; thence in a westerly direction along the north property line of
Charlotte Street extended a distance of five hundred six (506.0) feet; thence in a northerly direction
a distance of six hundred ninety-eight and fifty-six hundredths (698.56) feet to a point twenty (20)
feet south of the north section line of said Section 26; thence in an easterly direction along the
south property line of Cloud Street, being twenty (20) feet south of the north section line of said
Section 26, a distance offive hundred nine (509.0) feet to the point of beginning; containing 8.14
acres more or less.
BOOK, 1218 Pag~' 553
EXHIBIT "B"
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DESCRIPTION
NO BUILD EASEMENT - USD 305
~ortion of the Northeast Quarter of Section 26, Township 14 South, Range 3 West of
the 6th Principal Meridian in Salina, Saline County, Kansas, more particularly described as
follows:
Commencing at the Northeast corrier ofthe Northeast Quarter of Section 26, Township
14 South, Range 3 West of the 6th Principal Meridian; thence with an assumed bearing of South
89044'15" West along the North line of said Northeast Quarter 570.16 feet; thence South
00036'46" East 481.00 feet for the point of beginning; thence continuing South 00036'46" East
237.84 feet; thence South 89059'19" East 184.39 feet; thence South 00003'34" West 56.00 feet;
thence North 89059'19" West 226.85 feet; thence North 00036'46" West 293.84 feet; thence
South 89059' 19" East 43.00 feet to the point of beginning.
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Book~ 1218 Page~ 554
EXHIBIT He"
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DESCRIPTION
NO BUILD EASEMENT - AUTOZONE
~portion of Lot I, Block I, Hurd Plaza Addition to the City of Salina, Saline
County, Kansas, more particularly described as follows:
Beginning at the Northeast comer of Lot I, Block I, Hurd Plaza Addition; thence
with an assumed bearing of South 00003 '34" East along the East line of said Lot I a
distance of 60.00 feet; thence North 89059' 19" West parallel with the North line of said
Lot I a distance of 172.00 feet; thence North 00003'34" West 60.00 feet to the North line
of said Lot I; thence South 89059' 19" East along the North line of said Lot I a distance
of 172.00 feet to the point of beginning.
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