Prickly Pear Wall Ownership Agreement (recorded with ROD)I lllll ll l llll lllll Ill II I Ill ll lll lllll ll lll llll ll lll l ll lll llll l llll l llll II I Ill ll ll llll
,,,..-;· .... , REBECCA SEEMAN
(-(~;,.~ .. :· .. •0-~;),REGISTER OF DEEDS SALINE COUNTY KANSAS
· <r !.,t'''Tl it\.& ~ \1::.,.~·;;.-.):}Bo'?k:1416 Page: 19~6-1973
\~.-~···•"~~./Receipt #: 143363 Recording Fee: $140.00
"""•"""'" Pages Recorded : 8C,,..J
Date Recorded: 9/6/2022 3:28:22 PM
WALL OWNERSHIP AGREEMENT, GRANT OF EASEMENT, AND GRANT OF
PERMISSION TO ATTACH ELECTRICAL BOX AND CONDUIT
This Wall Ownership Agreement, Grant of Easement, and Grant of Permission to Attach
Electrical Box and Conduit ("this Agreement and Grant") is entered into this ~ay of August
2022 , by and between the City of Salina, Kansas ("City"), Restore Construction, LLC, a Kansas
limited liability company ("Restore Construction"), and Restore Properties , LLC, a Kansas limited
liability company ("Restore Properties").
Recitals
A. The City is the record owner of a downtown plaza commonly known as Campbell
Plaza ("Campbell Plaza") legall y described as follows
Lot One Hundred Twenty-One (121) on Santa Fe A v enue in the Original Town (now City)
of Salina, Saline County, Kansas .
B. Restore Properties is the owner of the commercial building located immediately
south of Campbell Plaza (the "Adjoining Building"), addressed as 129 South Santa Fe Ave.,
Salina, Kansas , formerly known as the Wilhelm Building, and located upon real estate (the
"Adjoining Property") legally described as follows:
The North Half (Nl /2 ) Lot One Hundred Twenty-three (123) on Santa Fe Avenue, Original
Town (now City) of Salina, Saline County, Kansas .
C. In conjunction with a downtown improv ement project implemented primarily in
1986-87, the City (1) acquired the real estate and razed the structures necessary fo r the
development of Campbell Plaza, (2) for Campbell Plaza (and other plazas included in the project),
hired an architect to design and reimbursed the owner of the Adjoining Building for the one-time
cost to the owner of separately contracting for sandblasting, spray texture stucco , and painting on
the original building face (the "Original Building Face") of the Adjoining Building, and (3)
constructed a brick face and stage (the "Stage"), including construction of an approximately 17-
foot tall and 55-foot long concrete block wall affixed with stucco grout to the Adjoining Building
as the structural base for the brick face (the "Block Wall").
D . The recent renov ation of Campbell Plaza as part of the City's downtown streetscape
project included removal and relocation of the Stage, in part due to public speculation by a member
of Restore Properties that storm drainage from the stage roof and guttering was potentially a source
of damage to the Adjoining Building.
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E. The City and Restore Construction are parties to a contract for renovation of
Campbell Plaza dated September 16 , 2021 (the "Construction Contract") under which Restore
Construction completed removal of the brick face and commenced removal of block from the
Block Wall in order to provide Restore Construction and Restore Properties access as would allow
repair, renovation and waterproofing of the Original Building Face of the Adjoining Building at
Restore Properties ' expense pursuant to the Construction Contract. Upon evaluation of the Block
Wall in relation to the Original Building Face of the Adjoining Building, Restore Construction and
Restore Properties requested that the Block Wall remain in place.
F. Attached and incorporated as Exhibit A is a depiction of the North Fa9ade of the
Adjoining Building (looking south toward the Adjoining Building from Campbell Plaza),
including the Block Wall and the elevated concrete footing running the full length of the North
Fa9ade of the Adjoining Building constructed as part of the Campbell Plaza renovation (the
"Elevated Footing"). The City and Restore Properties intend by this Agreement and Grant to
address the ownership of the Block Wall and Elevated Footing.
G. The City and Restore Properties also intend by this Agreement and Grant to provide
for the City 's continued ownership and utilization of the electrical box and related conduit that
powers Campbell Plaza and the newly constructed stage within Campbell Plaza in their current
configuration and location in relation to the Block Wall and the Original Building Face of the
Adjoining Building (the "Electrical Box and Conduit").
THE PARTIES , for and in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged , therefore agree and covenant:
1. Grant of Ownership of Block Wall and Easement. In relation to the Block Wall:
A. The City grants and conveys to Restore Properties , its successors , assigns ,
lessees, and subsequent owners of the Adjoining Property:
1. Ownership of the Block Wall and the Elevated Footing, separate from and
not including the real estate upon which both are located; and
2. An easement over strictly that portion of Campbell Plaza defined by
projection of the perimeter of the base of both the Block Wall and the
Elevated Footing onto Campbell Plaza, as depicted on the attached and
incorporated Exhibit B, for the sole purpose of maintaining the Block Wall
and Elevated Footing in their current location and configuration for so long
as the Block Wall and Elevated Footing remain in place (the "Easement").
3. Reasonable access to the Block Wall and Elevated Footing from Campbell
Plaza to the extent necessary for maintenance purposes on the basis of
advance notice and scheduling with the City with the intent of avoiding
conflicts with events occurring in Campbell Plaza.
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B. The City, Restore Construction, and Restore Properties agree that, except for
the work described in Section 2.B below, no further work will be required of
Restore Construction under the Construction Contract in relation to the repair
or replacement of concrete blocks within the Block Wall. (All other current
punch list items under the overall scope of the Construction Contract remain in
effect.)
2. Electrical Box and Conduit. In relation to the Electrical Box and Conduit:
A. Restore Properties grants to the City permission to continue to attach the
Electrical Box and Conduit to the Block Wall and the Original Building Face
of the Adjoining Building, and to maintain, repair, and replace the Electrical
Box and Conduit in its current location and configuration (or as modified by
agreement between the City, Restore Properties, and the electric utility
provider) for so long as the Block Wall remains in place. If the Block Wall is
removed, Restore Properties grants to the City permission to either (1) continue
to attach the Electrical Box to the Original Building Face in its current location
and to attach the necessary conduit on the Original Building Face or (2) attach
the Electrical Box and necessary conduit at an alternative location on the
Original Building Face of the North Fa<;ade of the Adjoining Building as agreed
upon among the City, Restore Properties, and the electric utility provider.
B. Restore Construction agrees to repair or replace concrete blocks in the Block
Wall necessary to fill the voids in the Block Wall resulting from recent
modifications to the Electrical Box and Conduit, subject to inspection and
approval by the City upon completion.
3. Release of Property Damage Claims. Restore Properties, on behalf of the limited
liability company, its members, and its successors, assigns, lessees, and subsequent owners of the
Adjoining Building, releases the City and its elected officials, officers, employees, and agents from
any and all claims of property damage to the Adjoining Building resulting from storm drainage
from the Stage prior to its removal and relocation from Campbell Plaza.
4. Waiver of Conflict of Interest. This Agreement and Grant was prepared by Greg A.
Bengtson of the law firm of Clark, Mize & Linville, Chartered, (the "Firm"), without his having
actively participated in the negotiation of its terms among the parties. Because the firm serves as
legal counsel to the City and because other attorneys of the Firm have served as legal counsel to
Restore Construction and Restore Properties regarding unrelated matters, the parties are advised
of their right to independent legal counsel and hereby make this waiver of any conflict of interest.
5. Invalidity in Part. If any clause, sentence, or paragraph of this Agreement and Grant
shall be held to be invalid, it shall not affect the validity of the remaining provisions of this
Agreement and Grant.
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6. Amendments. Neither this Agreement and Grant nor any of the terms may be
changed or modified, waived, or terminated except by an instrument in writing signed by an
authorized representative of the party against whom the enforcement of the change, waiv er, or
termination is sought.
7 . Waiver. No failure or delay by a party hereto to insist on the strict performance of
any term of this Agreement and Grant, or to exercise any right or remedy consequent to a breach
thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver
of any breach hereunder shall affect or alter the remaining terms of this Agreement and Grant, but
each and every term of this Agreement and Grant shall continue in full force and effect with respect
to any other then existing or subsequent breach thereof.
8 . Binding Effect. The City, Restore Construction, and Restore Properties agree that
this Agreement and Grant shall be recorded with the Office of the Saline County Register of Deeds
and shall be indexed to both Campbell Plaza and the Adjoining Property as legally described
abov e. This Agreement and Grant shall "run with the land" in relation to both Campbell Plaza and
the Adjoining Property and shall be binding upon and inure to the benefit of the City and Restore
Properties and their successors , assigns , lessees , and subsequent owners of Campbell Plaza or the
Adjoining Property.
EXECUTED the day and year first above stated.
(Signature Page Follows)
4
CITY OF SALINA, KANSAS
By:~~
Trent W. Davis , M.D., Mayor
RESTORE CONSTRUCTION, LLC
By:~_/-
RESTORE PROPERTIES , LLC
B~~
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ACKNOWLEDGEMENTS
STA TE OF KANSAS, COUNTY OF SALINE , ss:
On this £ day of August 2022, before me a Notary Public in and for said state,
personally appeared Trent W. Davis, M.D., Mayor of the City of Salina, Kansas, and JoVonna A.
Rutherford, City Clerk for the City of Salina, Kansas , known to me to be the persons who executed
the within Agreement and Grant and acknowledged to me that they executed the same for the
purposes therein stated on behalf of the City of Salina, Kansas.
cfo).,;~ ~. NIKKI GODING
t!!M@ Notary Public -Stc¥e o Kansas
My Appl Expires~ l'D
STA TE OF KANSAS, COUNTY OF SALINE, ss:
Printed Name: f\J l k\< ( Gcd l t1fj
On this \~ day of August 2022, before me, a Notary Public in and for said state,
personally appeared Robert J. Moeller, Member of Restore Construction, LLC, and Member of
Restore Properties, LLC, known to me to be the person who executed the within Agreement and
Grant and acknowledged to me that he executed the same for the purposes therein stated on behalf
of said limited liability companies.
t\ • DAN ST ACK
~ Notary Public -State of Kansas
My Appl . Expires December »,,)021
STATE OF KANSAS , COUNTY OF SALINE, ss:
Notary Public
Printed Name: -~D~er_l\~1'--~_o_d_~ __
On this )~t~ day of August 2022, before me, a Notary Public in and for said state,
personally appeared Jacob M. Wilson, Member of Restore Construction, LLC, and Member of
Restore Properties, LLC, known to me to be the person who executed the within Agreement and
Grant and acknowledged to me that he executed the same for the purposes therein stated on behalf
of said limited liability companies.
~. DAN STACK
~ Notary Publ ic -State of Kansas
My Appl. Expires December ~51 :IOJJ
6
Notary Public
Printed Name:
0 10 20 Alley (East) SCAl£: , • -20' 30 Electric Cohtrol Panel 120.80 Top Concrete S/W North Wall 129 South Santa Fe Ave. 40 Top of Elevated Concrete Footing Woll Santo Fe Ave (West) I ~ = """' """' -"""""" -""""'' I i EXHIBIT A Aug 2022 llDWC' .... sa...t """" """" """ ...s:J _J ~
~ <;J~ ~N~ 0 I : : lR/W R/W---1 ~ ~ ~ 0 ....... § V) I I 10 20 30 SCALE: ,. -20· LOT 121 North Face of Devoted Concrete Footing North Face of Black Wall Original Building Face LOT 123 40 Dectric Control Panel Original Building Face I~ I~ I CITY OF SALINA, JOO WASH, SALINA, KANSAS PUBLIC WORKS -ENGINEERING -UTILITIES EXHIBIT B ..,,, Aug 2022 l'UNoC" ,..,.,_ ...... ,_,., .. ,,,. I ~ = i _SJ _j oJ