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Agr to Sell Real Estate LEASE AND AGREEMENT TO SELL REAL ESA TE This Lease and Agreement to Sell Real Estate (the "Agreement") is entered into this ~ day of September, 2003, by and between Rachel Morrison and Harold Morrison, Trustees under the Rachel Morrison Trust No.1 dated March 1, 1978, (the "Morrison Trust") and the City of Salina, Kansas (the "City). Recitals A. The Morrison Trust owns the following described real estate located in Saline County, Kansas: The West Half of the Northwest Quarter (W/2 NW/4) of Section Six (6), Township Fourteen (14) South, Range Two (2) West of the Sixth (6th) Principal Meridian, Saline County, Kansas, except a tract of land described as follows: Beginning at the Northeast comer of the West Half of the Northwest Quarter (W/2 NW/4) of said Section Six (6); thence South along the East line of the West Half, a distance of Six Hundred (600) feet and no hundredths; thence West parallel with the North line of said Northwest Quarter, a distance of Three Hundred Fifty and no hundredths (350) feet; thence North parallel with the said East line a distance of Six Hundred and no hundredths (600) feet to a point on the said North line; thence East along said North line a distance of Three Hundred Fifty and no hundredths (350) feet back to the point of beginning. The above described legal description would also except Highway right-of-way and Flood Control right-of-way. (the "Real Estate") B. The City desires to currently lease and ultimately purchase the Real Estate from the Morrison Trust. THEREFORE, the parties agree and covenant as follows: Terms of Lease 1. Lease. The Morrison Trust leases the Real Estate to the City for a term of ten years commencing effective August 1, 2003 and ending July 31, 2013 (the "Lease Term") for rent in the amount of $6,500 per year payable in advance monthly installments of $541.66 per month commencing effective August 1, 2003. F or purposes of this Lease, any reference to the "Anniversary Date" shall refer to August 1 st of each year during the Lease Term. 7. Consent to Annexation. Platting and Zoning. The Morrison Tmst agrees and covenants that it shall take all actions necessary for the annexation, platting, and zoning of the Real Estate in a manner consistent with the development of the Real Estate as ~ soccer complex within a public park at such time and in such form as the City may direct, in it~ sole discretion. The Morrison Tmst agrees to sign petitions or any other documents necessary to complete those processes and hereby waives any and all protest rights it may have in relation to any of those processes. 8. Consent to Development as a Soccer Complex. The Morrison Tmst consents to the City's development and operation of the Real Estate as a soccer complex within a public park. The Morrison Tmst consents to the constmction of improvements the City deems useful in the development and operation of a soccer complex as described in paragraph 4 above. The City shall be the owner of any such improvements it makes to the Real Estate. 9. Utilities. The City shall be responsible for the cost of any utilities consumed in relation to its use of the Real Estate during the Lease Term and for any costs associated with utility extensions or improvements necessary to serve the Real Estate. The Morrison Tmst agrees to grant any easements necessary to complete such utility extensions or improvements. The Morrison Tmst agrees to sign petitions or other documents necessary to complete those utility extensions or improvements and hereby waives any and all protest rights it may have in relation to such extensions or improvements. 10. Breach of Lease. In the event the City shall fail to comply with any substantial term, condition or covenant of this Lease within ten (10) days after written notice to do so has been mailed to it by the Morrison Tmst, or in the event the City abandons the Real Estate before the end of the term, any of such events shall be deemed an immediate breach and forfeiture of this Lease and all unpaid installments of rent through the next Anniversary Date and any other past due and unpaid expenses herein provided for shall immediately become due :md payable by the City to the Morrison Tmst in full satisfaction of the City's obligation under this Lease. In the event the Morrison Tmst shall fail to comply with any substantial term, condition or covenant of this Lease within ten (10) days after written notice to do so has been mailed to it by the City, the City may seek injunctive relief in order to compel performance by the Morrison Tmst and may recover any damages incurred by the City resulting from any failure to comply by the Morrison Tmst. 11. Legal Fees. In the event legal action must be taken because of the breach of any agreement or obligation contained in this Lease on the part of the Morrison Tmst or the City to be kept or performed, and a breach shall be established, the prevailing party shall be entitled to recover all expenses incurred therefore, including reasonable attorney fees. Terms of Sale and Purchase 12. Sale and Purchase of Real Estate. The Morrison Tmst agrees to sdl and the City agrees to purchase the Real Estate, at such time after the death of Rachel Morrison, but in no event later than July 31, 2013, as the Morrison Tmst shall elect. The election of the date of purchase (the 3 2. Property Taxes. The Morrison Trust shall be responsible for payment of all real property taxes on the Real Estate prorated to July 31, 2003. The City shall be responsible for all real property taxes on the real estate during the Lease Term. The Morrison Trust hereby delegates all rights and responsibilities relating to the real property taxation of the Real Estate to the City and agrees to execute any documents that may be required by Saline County officials necessary to implement that delegation. The delegated rights and responsibilities shall include, without limitation, the receipt of statements and notices and the right to protest classification and valuation of the Real Estate. 3. Insurance. The City shall, at its expense, include the Real Estate under the City's general liability insurance policy. The policy shall be written with an insur.mce company authorized to do business in Kansas and shall have limits of not less than the maximum liability for claims which could be asserted against the City for any number of claims arising out of a single occurrence or accident under the Kansas Tort Claims Act, as it now exists and may hereafter be amended. The City shall from time to time increase such limits in such amount as may be necessary to at all times during the term of this Lease maintain such limits at the then maximum liability for such claims under the Kansas Tort Claims Act. 4. shall be: Use. The City's exclusive uses of the Real Estate during the teml of this Lease (a) as a public park for the development and operation of a soccer complex, including indoor and/or outdoor soccer fields, spectator seating, concession stands, restrooms, parking, playgrounds, and hiking and/or non-motorized biking trails; or (b) continued agricultural use of the portions of the Real Estate not yet developed as part of the soccer complex. The Morrison Trust hereby consents to any sublease the City may choose to enter into for the purpose of conducting such agricultural use and agrees to execute any documents necessary to allow for such use ofthe Real Estate by the City. 5. Compensation of Current Tenant. The Morrison Trust and the City acknowledge that since the 2003 wheat harvest the current farm tenant of the Morrison Trust has on two separate occasions disked the cultivated acreage on the Real Estate and that according to the Saline County Extension Service an appropriate custom rate for disking in Saline County is $7.90 per acre. The City, therefore, agrees to compensate the Morrison Trust's current farm tenant the amount of $7.90 per acre for 64 acres, times two, for a total of $1,011.20, payable by no later than October 15,2003. 6. Prohibition Against Drilling On-site Water Wells. The Morrison Trust and the City acknowledge that a series of test drillings conducted by the City's contractor revealed a saline content, which precludes use of on-site water wells for purposes of turf irrigation. On the basis of the results of its test drilling, the City agrees that it shall not drill anyon-site water wells during the Lease Term. 2 "Closing Date") by the Morrison Trust shall be exercised by providing the City with written notice of such election no less than 180 days prior to the Closing Date (the "Notice of Election"). If the Morrison Trust has not provided the City with the Notice of Election of the Closing Date by January 31, 2013, the Closing Date shall be July 31, 2013, unless otherwise agreed by the parties. The purchase price for the Real Estate shall be the sum of Two Hundred Forty-five Thousand and no/lOO's Dollars ($245,000.00) payable in full upon delivery of a trustee's deed conveying marketable fee simple title at Closing. 13. Warranties. The Morrison Trust warrants that it is the lawful owner of the Real Estate and that the Real Estate is free and clear of all liens and encumbrances, except easements of record. 14. Evidence of Title. (a) As soon as is reasonably feasible following execution of this Agreement, the Morrison Trust shall provide the City, at the City's expense, with a contract purchaser's policy of title insurance covering the Real Estate, which will insure the City against loss or damage to the extent of the purchase price by reason of defects in the title of the Morrison Trust to the Real Estate, subject to easements of record. Upon execution of this Agreement, the City shall request from Mid- Kansas Title Co., Inc., for the City's examination a signed commitment for the contract purchaser's title insurance policy. Upon receipt of the tìtle insurance commitment, the City shall have a reasonable time, not to exceed 20 days, to examine it and to return it to the Morrison Trust with any written objections relative to the marketability of the title. Any objections not so furnished shall be deemed to be waived by the City. If valid objections are made to the marketability of the title, the Morrison Trust shall have a reasonable time to satisfy any valid objections to the title and to make the title marketable. (b) The City shall record with the Salina County Register of Deeds a notice of this Agreement and the City's equitable interest in the Real Estate. The Morrison Trust shall neither create nor permit to be created any liens or encumbrances against the Real Estate. (c) When the Morrison Trust gives the Notice of Election, the City shall have the option of requesting from Mid-Kansas Title Co., Inc., at the City's expense, a signed commitment for a conversion from the contract purchaser's policy of title insurance to an owner's title insurance policy in an amount to be determined by the City. Upon receipt of the owner's title insurance commitment, the City shall have a reasonable time, not to exceed 20 days, to examine it and to return it to the Morrison Trust with any written objections relative to the marketability of the title. Any objections not so furnished shall be deemed to be waived by the City. If valid objections are made to the marketability of the title, the Morrison Trust shall have a reasonable time to satisfy any valid objections to the title and to make the title marketable. 15. Escrow Agent. Mid-Kansas Title Co., Inc. shall be the Escrow Agent of the parties and shall hold this Agreement, trustee's deed, title insurance policy, and all other papers of transfer pending the complete fulfillment of this Agreement. The Escrow Agent shall receive and disburse all payments to be paid hereunder. 4 16. Payment of Expenses. The City agrees that it shall pay the cost of the title insurance premium, any escrow or closing fees, and the cost of recorded the Trustee's Deed. General Terms 17. Assignment. In consideration of the nature and terms of this Agreement, the MoITÍson Trust and the City waive any right to assign or transfer this Agreement, or any interest hereunder. 18. Waiver. The waiver of any payment provided for herein, the acĹ“ptance of any payment at any time other than the designated payment time, or the failure of either party to insist upon prompt performance of any condition or other provisions of this Agreement, shall not constitute a waiver of the right of the other party to insist upon prompt and punctual performance at any other time hereunder. 19. No Commission. The parties hereby stipulate that they have not consulted with any real estate broker or salesman with respect to this lease or sale, and no commissions arising from this lease or sale are due and owing. 20. Real Estate" Reporting Person. The parties agree that the Escrow Agent is the real estate reporting person as that term is derIDed under Internal Revenue Code Section 6045( e). The MoITÍson Trust agrees to provide Escrow Agent with a written statement, certified under penalties of perjury, setting forth its correct name, address, and taxpayer identification number. The parties further agree that Escrow Agent shall be required to file the informational return required by Internal Revenue Code Section 6045. 21. No Oral Agreements. This Agreement constitutes the entire agreemE:nt between the parties and there are no representations, warranties, conditions, or agreements other than those expressly set forth herein. No other agreement, statement, promise, warranty, or representation made by any party to this agreement that is not in writing and signed by all parties to this Agreement shall be binding. 22, Default. Except as other remedies are expressly addressed in this Agreement, if the City defaults in the payment of any sums due hereunder, or it either party fails to perform any other covenant herein contained after receiving ten (10) days written notice of such breach, then in addition to any other remedies available and at the option of the non-defaulting party, the non- defaulting party shall have the right to (a) begin action to require the specific performance of this Agreement; (b) seek damages for the failure of the defaulting party to perform this Agreement according to the conditions herein stated, or (c) elect to cancel this Agreement. 23. Survival of Covenants. Any agreement, promise, or covenant which by its terms is intended to extend beyond the closing of this Agreement shall endure beyond the closing in accordance with its terms. 5 24. Extent of Contract. This Agreement shall be binding upon the successors of the respective parties hereto. IN WITNESS WHEREOF, the parties have caused this Contract to be signed by its duly authorized officers on the day and year first above written. CITY OF SALINA, KANSAS B~~ Dennis M. Kiss anager RACHEL MORRISON TRUST NO. Jl Dated March 1, 1978 By: R. ú' ~Ju.ll fì; (?v'V~11 Rachel Morrison, Trustee By: ~7:?ì D/?~~ Harold Morrison, Trustee 6 CITY ATTORNEY'S OFFICE Greg A. Bengtson City Attorney 129 South 8th. P.O. Box 380 TELEPHONE. (785) 823-6325 FAX . (785) 823-1868 E-MAIL. area.benatson@salina.ora E-MAIL. gabenatson@cml-Iaw.com Website: www.cLsalina.ks.us Salina, Kansas 67402-0380 Salina September 24, 2003 Lieu Ann Nicola City Clerk City of Salina P.O. Box 736 Salina, KS 67402-0736 Re: Soccer Complex Lease and Agreement to Sell Real Estate Dear Lieu Ann: Enclosed for safekeeping is the original Lease and Agreement to Sell Real Estate dated September 22, 2003, between the City and Rachel and Harold Morrison, Trustees Under the Rachel Morrison Trust No.1 dated March 1, 1978. Thank you. yours, cc: Dennis Kissinger, City Manager Mike Morgan, Deputy City Manager & Director of Building Services Shawn O'Leary, Director, Engineering & General Services Dean Andrew, Director, Planning & Community Development Steve Snyder, Director of Parks and Recreation Rodney Franz, Director Finance & Administration