Real Estate Purchase Agreement REAL ESTATE PURCHASE AGREEMENT
This Agreement is made and entered into as of this 5th day of October, 2015 ("Effective
Date"), by and between the City of Salina, Kansas ("City"), and RD, LLC, a Kansas limited liability
company("Seller").
Recitals
A. Seller owns certain real estate generally located on the east side of the 100 block of
North Fifth Street in Salina, Saline County, Kansas, and legally described on the attached and
incorporated Exhibit A(the"Real Estate").
B. City desires to purchase and acquire the Real Estate to provide for the construction
of a multi-purpose field house facility of approximately 70,000 square feet for indoor recreational
use, including hard-surfaced space for court sports and artificial turf for field sports (the "Field
House").
C. The development of the Field House project will be funded through a combination
of public and private funding sources; the private funding component consists of contributions from
an association of persons and business entities ("Private Partners"), whose private contributions are
currently being held in a provisional account at the Greater Salina Community Foundation.
D. The Private Partners have agreed to fund the City's costs to purchase and acquire the
Real Estate, and certain expenses related thereto, and the City is in receipt of funds from the Greater
Salina Community Foundation provisional account in an amount equal to these costs and expenses.
E. Subject to the terms and conditions of this Agreement, City desires to purchase and
acquire the Real Estate from Seller and Seller desires to convey and transfer the Real Estate to
Seller.
NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Sale of Real Estate. Seller agrees to sell the Real Estate to City, and City agrees to
purchase the Real Estate from Seller, upon the terms and conditions set forth herein.
2. Purchase Price. The total purchase price for the Real Estate shall be the amount of
Six Hundred Twenty-Eight Thousand Two Hundred Twenty-Nine and 71/100 Dollars
($628,229.71), which shall be paid by City to Seller at Closing in certified funds, subject to
adjustment for the Escrowed Funds to be retained by the Escrow Agent pursuant to Section 8.
3. Payment of Expenses. Seller shall pay the following expenses at Closing:
(a) The title insurance premium;
(b) The escrow and closing fee,if any; and
(c) The cost of recording the decd.
4. Escrow Agent. Land Title Services, Inc., Salina, Kansas, is hereby designated as the
Escrow Agent of the parties and shall hold this Agreement, the deed, the 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.
5. Evidence of Title. Seller shall provide City with an owner's policy of title insurance
covering the Real Estate which will insure City against loss or damage in the amount of
$626,667.71 by reason of defects in Seller's title to the Real Estate, subject only to easements and
restrictions of record. As soon as reasonably possible after execution of this Agreement, Seller shall
deliver a signed commitment for the title insurance policy from Land Title Services, Inc., for
examination by City. Upon receipt of the title insurance commitment, City shall have a reasonable
time to examine and return it to Seller with any written objections relative to the marketability of the
title. If valid objections are made to the marketability of the title, Seller shall have a reasonable time
to satisfy any valid objections to the title and to make the title marketable. If Seller cannot furnish a
marketable title to the Real Estate within a reasonable time, then this Agreement shall be null and
void, and thereupon the Escrow Agent shall return to City all monies paid by City, and to the Seller
the deed, and any other documents shall be returned to the party who deposited them with the
Escrow Agent,whereupon all parties shall be released from further liability hereunder.
6. Closing Date and Possession. Time is expressly declared to be of the essence of
this Agreement. The "Closing Date" shall be on or before October 6, 2015, unless both parties
agree in writing to advance or delay the Closing. "Closing"means the settlement of the obligations
of Seller and City to each other under this Agreement, including the payment of the purchase price
as set forth in Section 2 above, and the delivery to City of a deed, in proper form for recording, to
transfer to City fee simple title to the Real Estate free of all encumbrances except as herein stated.
7. Restrictions, Easements, Limitations, Taxes. City shall take title subject to the
following: zoning, restrictions, prohibitions or other requirements imposed by governmental
authority; restrictions, covenants and matters appearing on the plat or of record; public utility
easements of record; and taxes for 2015 and subsequent years.
8. Escrow of Tax Funds. At Closing, the Escrow Agent shall withhold the sum of
$3,522.68 from the purchase price ("Escrowed Funds"). The Escrowed Funds shall be held by the
Escrow Agent and distributed to the Saline County Treasurer to pay the prorated 2015 real estate
taxes accruing prior to the Closing Date. The parties authorize the Escrow Agent to distribute the
Escrowed Funds upon written notice from City to the Escrow Agent that such taxes are due and
owing.
9. Conveyances. Seller shall properly execute a warranty deed conveying the Real
Estate to City and shall place the deed in escrow with the Escrow Agent as soon as reasonably
possible. If the parties fully comply with the provisions of this Agreement, then this Agreement
shall become binding and the Escrow Agent shall deliver the deed and other documents related to
the Real Estate. No title shall pass hereunder to City, but shall remain in Seller, until the foregoing
conditions have been fully complied with.
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10. Representations and Warranties of Seller. Seller represents and warrants to City the
following as of the Effective Date and as of the Closing Date:
10.1 Title. That City will acquire from Seller, by general warranty deed, good
and marketable fee simple title (as established by the Kansas Marketable Title Act, as amended,
and the applicable Title Standards of the Bar Association of the State of Kansas) to the Real
Estate, including all legal and beneficial interest therein, free and clear of all liens, claims,
actions, encumbrances, leases, tenancies, or title exceptions of any kind whatsoever except as
otherwise expressly provided herein.
10.2 Compliance. That Seller has not received any notice or knowledge of any
claims of any governmental authority to the effect that the current operation, use, or condition of the
Real Estate fails to comply with any governmental requirements or that any investigation has been
commenced or is contemplated representing any such possible failure of compliance.
10.3 No Liens. That the Real Estate is free and clear of all liens, claims, and
demands, including mechanic's and materialmen's liens, in connection with work performed on the
Real Estate or any part thereof or any improvements thereon and materials provided in connection
with such work, where such work has been or will be performed or contracted for or such materials
have been or will be provided or contracted for on or before the Closing Date, and in the event of
the filing of any such lien, Seller shall promptly and with due diligence(and in all events prior to the
earlier of thirty (30) days after the notice of filing of the same or prior to the commencement of any
foreclosure or other enforcement proceeding with respect thereto) secure the release of the same.
10.4 Authority. That this Agreement is duly authorized, executed, and delivered
by and binding upon Seller; that Seller has full capacity to do all things required of it under this
Agreement.
10.5 Contracts. That there are no contracts or agreements, including leases or
occupancies with respect to or affecting the Real Estate not reflected in the title insurance
commitment referenced above, Seller has not granted to any party any right or option to purchase or
lease the Real Estate or any part thereof, there is no right or option in any person other than City to
purchase the Real Estate or any part thereof, and at or by Closing any tenants or occupants will be
removed. Except as expressly disclosed to City in writing, no portion of the Real Estate is subject
to any rights of way, building use restrictions, variances, easements, reservations or limitations
of any nature whatsoever, whether recorded or unrecorded.
10.6 No Lawsuits. That there are no actions, suits, or proceedings pending, or to
the best knowledge of Seller, threatened, before or by any judicial body or any governmental
authority, against or affecting the Real Estate or against Seller which would or does affect the Real
Estate; and that there is no existing, proposed, or contemplated eminent domain or similar
proceeding which would affect the Real Estate.
10.7 Delivery of Documents. Seller has delivered to City true, correct and
complete copies of all environmental assessments and reports (including all amendments thereof)
in the possession or control of Seller relating to the Real Estate.
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10.8 Taxes. Seller has not filed any challenges or appeals regarding the amount
of taxes on, or the assessed valuation of, the Real Estate, and Seller has not made any special
arrangements or agreements with any governmental authority with respect thereto. There is no
tax assessment (which is in addition to the normal, annual general real estate tax assessment)
pending or threatened with respect to any portion of the Real Estate.
10.9 FIRPTA. Seller is not a "foreign person" within the meaning of Section
1445(0(3) of the Internal Revenue Code of 1986.
10.10 Environmental Matters. Seller has obtained and furnished to City a Phase I
environmental site assessment of the Real Estate, prepared by GeoCore, Inc., dated March 2015.
To Seller's knowledge, the information contained in the Phase I environmental site assessment
remains true and correct. In particular, from and after the effective date of the Phase I
environmental site assessment, Seller has not caused the Real Estate to be in violation of, and
Seller has received no written notice from a governmental authority with jurisdiction over the
Real Estate that the Real Estate is in violation of, any Environmental Law. For purposes hereof,
(i) "Environmental Law" means any Federal, state, local or administrative agency law, rule,
regulation, ordinance or order relating to Hazardous Materials (as defined below), including,
without limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Section 9601 et. seq.) and the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et. seq.); and (ii) "Hazardous
Material" means any substance, chemical, waste or other material listed as "hazardous" or
"toxic" under any Environmental Law, including, without limitation, petroleum and petroleum
byproducts.
10.11 Accuracy of Representations. No representation or warranty by Seller in
this Agreement, or any certificate or other document furnished or to be furnished to City
pursuant hereto, or in connection with the negotiation, execution or performance of this
Agreement, contains or will at the Closing contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated herein or thereon or necessary to
make any statement herein or therein not misleading in any material respect.
11. City's Representations and Warranties. City represents and warrants to Seller
that, as of the Effective Date and the Closing Date, this Agreement is and will be duly authorized,
executed, and delivered by and binding upon City; and that City has and will have the capacity and
authority to enter into this Agreement and perform its obligations hereunder.
12. Inspection. Except for Seller's representations and warranties in Section 9, Seller is
making no warranties of any kind regarding the condition of the Real Estate, and City is not asking
for any warranties from Seller. Subject to the foregoing, City warrants, therefore, that it has
inspected the Real Estate and agrees to accept it "as is," and waives any and all claims against
Seller, whether currently known or unknown, resulting from any condition related to the Real
Estate.
13. Default and Remedies. Seller or City shall be in default under this Agreement if
either fails to comply with any material covenant, agreement, or obligation imposed upon it within
time limits required by this Agreement and such noncompliance continues for five (5) days after the
giving of written notice of such noncompliance; provided, however, that the foregoing shall not
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apply to any failure to give objections within the time periods set forth in any of the paragraphs of
this Agreement pertaining to contingencies or conditions precedent expressly set forth above.
Following a default by either Seller or City under this Agreement, the other party shall have the
right, in addition to any other rights and remedies existing in its favor, to enforce its rights and
the obligations of the other party hereunder not only by an action(s) for damages but also by an
action(s) for specific performance, injunctive and/or other equitable relief, without posting any
bond or other undertaking. In addition, the non-defaulting party may recover its costs and
reasonable attorney fees incurred in any action related to such breach.
14. Assignment. This Agreement and any right or interest in the Real Estate is assignable
only with the written consent of all parties.
15. Waiver. The waiving of any payment provided for herein or the acceptance of the
same at any time other than the designated payment time, or the failure to insist upon prompt
performance of any condition or provisions hereof, shall not constitute a waiver of the right of any
party to insist upon prompt and punctual performance at any other time hereunder.
16. No Brokerage. Seller and City represent that no real estate brokers or agents
negotiated this sale. Either party to this Agreement through whom a claim to any broker's, agent's,
finder's or other fee is made, contrary to the foregoing representation, shall indemnify, defend, and
hold harmless the other party to this Agreement from any loss, liability, damage, or expense,
including reasonable attomeys' fees, court costs, and other legal expenses, paid or incurred by the
other party that is in any way related to such a claim. The provisions of this paragraph shall survive
Closing or termination of this Agreement.
17. Real Estate Reporting Person. The parties agree that the Escrow Agent is the real
estate reporting person as that term is defined under Internal Revenue Code Section 6045(e). Seller
agrees to provide Escrow Agent with a written statement, certified under penalties of perjury, setting
forth its correct name, addresses, 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.
18. Representation of Parties. The law firm of Clark, Mize & Linville, Chartered,
Salina, Kansas, represents City. Seller understands that it has the right to seek independent legal
counsel of its choosing to represent it and to advise it with respect to this matter. By executing
this Agreement, Seller represents that it has either seen separate counsel of its choosing or has
elected to proceed without separate counsel herein, and that City's attorney is not representing
Seller and has not advised it with respect to this matter.
19. 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.
20. Governing Law. This Agreement and its validity, construction and performance shall
be governed by the laws of Kansas.
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21. Persons Bound—Copies. This Agreement shall extend to and bind the heirs,
executors, administrators, trustees, successors and assigns of the parties hereto, and may be
executed in any number of counterparts, each of which shall be deemed an original, or in multiple
originals, and all such counterparts or originals shall for all purposes constitute one agreement.
22. Notices. Any notice or election required or permitted to be given or served by any
party hereto upon any other shall be deemed given or served in accordance with the provisions of
this Agreement, if said notice or election is delivered personally, sent by recognized overnight
delivery service or mailed in a sealed wrapper by United States Mail, registered or certified,
return receipt requested, postage prepaid, properly addressed as follows:
If to City: City Clerk
Attn: Dion Louthan, Director of Parks and Recreation
P.O. Box 736
Salina, Kansas 67402-0736
If to Seller: RD, LLC
Attn: Brian Richardson, Managing Partner
361 N. Holmes Rd.
Salina, Kansas 67401
Each such mailed notice or communication shall be deemed to have been given if personally
delivered on the date delivered; if sent by recognized overnight courier or, if mailed, the day
deposited with the United States Postal Service or delivered to the overnight courier. Any party
hereto may change its address for the service of notice hereunder by delivering written notice of said
change to the other party hereto in the manner above provided.
23. Severability. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render the other provisions unenforceable, invalid, or illegal.
24. Captions. The captions contained herein are for the purpose of convenient
reference and do not separately define, limit or describe the scope and intent of any section to the
exclusion of consideration of all other provisions of this Agreement contained in all other
sections.
25. Time. Time is of the essence of this Agreement. No extension will be granted unless
in writing and signed by the parties.
26. Typewritten or Handwritten Provisions. Typewritten or handwritten provisions
inserted or attached shall supersede all conflicting printed versions.
27. Merger Clause. The parties intend these terms to be a complete, conclusive and final
expression of all the conditions of their Agreement. No other promises, statements, warranties,
agreements or understandings, oral or written, made before or at the signing thereof, shall be
binding unless in writing and signed by all parties and attached hereto. Any amendment to this
Agreement, including an oral modification supported by new consideration, must be reduced to
writing and signed by both parties before it will be effective.
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IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first
above written.
CITY OF SALINA, KANSAS
By 1.41*-11'�i+
' . Blanes ard, Mayor
Attest: L I/l.J L k
Shan i W. ks, CMC, City Clerk
Form:
gal Counsel
RD,LLC
By: /
Brian Richardson, Managing Member
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EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
A Tract of land being composed of Lot 84, Lot 86, Lot 88, Lot 90, Lot 92, Lot 94, Lot 96, Lot
98, and part of Lot 100 on 4th Street, and Lot 91, Lot 93, Lot 95, Lot 97, Lot 99, and part of Lot
89 on 5th Street, and that portion of the vacated alley that abuts said Lots, all in the Original
Town of Salina, Saline County, Kansas. Said Tract being more particularly described as follows:
Commencing at the Southwest corner of Lot 107 on said 5th Street;
Thence on an assumed bearing of North 00° 03' 18" East on the east Right of Way line of said
5th Street, a distance of 201.69 feet to the Southwest corner of said Lot 99 and the Point of
Beginning;
thence North 00° 03' 18" East on the east Right of Way line of said 5th Street, a distance of
277.08 feet to the Northwest corner of the tract described in Saline County Register of Deeds
Book 1267, Page 761;
thence North 89° 57' 59" East on the on the boundary line of said described tract, a distance of
130.71 feet to the west line of said Lot 90;
thence North 00° 01' 35" East, a distance of 175.29 feet to the northwest corner of said Lot 84;
thence South 89° 58' 04" East, a distance of 119.26 feet to the Northeast corner of said Lot 84;
thence South 00° 05' 02" West on the west line of said 4th Street, a distance of 444.14 feet to a
point that is 8.5 feet northwest, measured at right angles, from the centerline of the main track of
the McPherson Branch of the Union Pacific Railroad Company;
thence South 12° 57' 26" West on a line that is 8.5 feet northwest, measured at right angles, from
said centerline, a distance of 9.27 feet to the south line of said Lot 100;
thence North 89° 48' 51" West on the south line of said Lot 100 and said Lot 99, a distance of
247.58 feet to the Point of Beginning.
Said Tract Contains 90183 square feet more or less.
RECEIPT BY ESCROW AGENT
The undersigned hereby acknowledges receipt of the executed original of this Agreement,
and agrees to act as Escrow Agent and Real Estate Reporting Person as defined under Internal
Revenue Code Section 6045(c). Seller shall execute and deliver a general warranty deed upon
execution of this Agreement to the Escrow Agent. Said documents shall be delivered to City by the
Escrow Agent upon the closing of this Agreement,pursuant to its terms.
This receipt is executed this 3 d y of October, 2015.
LAND TITLE SERVICES, INC.
By:
Name: /fT af-AW/ 4,i c
Title: j'es)
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