Agreement for Local Match for Project McIntosh AGREEMENT
between the
CITY OF SALINA, KANSAS
and
SOUTH OHIO LAND, LLC
Regarding the City's participation in the local match under the application to
the Kansas Department of Transportation Economic Development Program
for"Project McIntosh"
This Agreement is entered into effective as of the 11 cn day of March 2024, by and between
the CITY OF SALINA, KANSAS, a municipal corporation, (the "City") and SOUTH OHIO
LAND, L.L.C., a Kansas limited liability company, ("South Ohio Land").
Recitals
A. The City and South Ohio Land are parties to "An Agreement Regarding the
Annexation of the Applequist Tract Located at the Southwest Corner of Schilling Road and Ohio
Street" dated June 24, 2003 (the "Annexation Agreement") relating to a 146 acre tract of land
located in the Northeast Quarter of Section One (1), Township Fifteen (15) South, Range Three
(3) West of the Sixth Principal Meridian in Saline County, Kansas (referred to in the Annexation
Agreement and in this Agreement as "the Applequist Tract"). The Annexation Agreement was
recorded in the records of the Saline County Register of Deeds on September 16, 2003, at Book
1059, Pages 1806-1815.
B. As a precondition of annexation of the Applequist Tract into the corporate limits of
the City, the Annexation Agreement addressed the obligations of South Ohio Land (and its
successors and assigns)to pay its proportionate share of water main, sanitary sewer, public street,
and drainage improvements serving the Applequist Tract at the time of actual development and to
dedicate needed land for public street improvements.
C. Under Section 6 of the Annexation Agreement regarding "Drainage" South Ohio
Land agreed to maintain the south to north drainage pattern through the Applequist Tract and in
order to accommodate existing and future runoff agreed to dedicate a 120-foot-wide strip of land
to the City as public drainage/utility right-of-way on the plat of Liberty Addition No.2 in exchange
for the City's agreement to construct a drainage ditch within the dedicated right-of-way, to design
and pay for the cost of constructing two (2) street crossings over the ditch, and to take full
responsibility for maintenance of the ditch in perpetuity as a public improvement. South Ohio
Land dedicated the drainage/utility right-of-way, the City constructed the drainage ditch, and the
City has constructed one of the two street crossings over the ditch. The City estimates the current
cost of designing and constructing the second street crossing to be approximately $250,000.
D. South Ohio Land is working with two local businesses regarding sites within
Liberty Addition No. 2 located on currently platted but unimproved McIntosh Street ("Project
McIntosh"). The needed street improvements prompted by Project McIntosh include engineering/
design, construction, and construction/engineering of approximately 1,300 feet of paved street
with curb and gutter, installation of a box culvert to serve as the second street crossing for which
the City is responsible, installation of several storm water inlets, and completion of related utility
adjustments (collectively, the "Project"). The Project has been confirmed by the Kansas
Department of Transportation("KDOT")as qualifying for its economic development program(the
"Program") which provides funding for needed street improvements related to economic
development projects. The Program only funds street improvements and not utility adjustments;
however, the cost of utility adjustments count toward the applicable local match required under
the Program.
E. The City and South Ohio Land intend to apply to KDOT for funding of the cost of
the street improvements and intend through this Agreement to address their respective obligations
toward the local match requirement in the event the KDOT funding is awarded and funded.
THE PARTIES agree and covenant:
1. Recitals. The recitals set forth above are incorporated as part of this Agreement.
2. Submission of Grant Application. The City and South Ohio Land agree that the
City shall submit to KDOT the attached:
(a) KDOT Economic Development Program Application Form (2023 — 2024) as
completed for Project McIntosh(the "Grant Application Form"), and
(b) Grant Application Form Attachment A—Engineer's Estimate of Probable Construction
Cost (the "Grant Application—Attachment A")
along with any related attachments as may be required to complete the application (collectively,
the"Grant Application") as soon as reasonably practicable following execution of this Agreement
by authorized representatives of both the City and South Ohio Land.
3. Estimated Project Cost. The City and South Ohio Land acknowledge and agree
that:
(a) The estimated total cost of design, construction, and inspection of the Project
(including a 30%contingency) in the amount of$2,006,556.50 is detailed at page 5 of
the attached Grant Application Form(the "Estimated Project Cost").
(b) The Engineer's Estimate of Probable Construction Cost ($1,856,556.50) is broken
down by line item on the Grant Application — Attachment A to show Total Street
Construction Cost($1,459,666.50)and Total Utility Construction Cost($396,890.00).
(c) The Grant Application Form proposes an allocation of the Estimated Project Cost
($2,006,556.50)between KDOT funding of Total Street Construction in the amount of
$1,495,666.50 (the "KDOT Funding") and local match funding of preliminary
engineering/design,utility adjustments, and construction engineering/inspection in the
combined amount of$546,890.00 (the "Local Match").
4. Local Match; City Participation; Conditions Precedent. South Ohio Land
agrees to be responsible for the cost of the Local Match (i) required to qualify for the KDOT
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Funding and (ii) that when combined with the KDOT Funding will be sufficient to complete the
Project. In consideration of South Ohio Land's commitment to be responsible for the cost of the
Local Match, the City agrees to contribute toward the Local Match the sum of$212,500.00 (85%
of the $250,000.00 estimated cost of the one remaining street crossing for which the City is
responsible pursuant to the Annexation Agreement), subject to the following conditions precedent:
(a) The KDOT Grant must be awarded and funded in an amount such that the KDOT
Funding plus the Local Match (the "Available Funding") equals or exceeds the
Estimated Project Cost;
(b) South Ohio Land and/or the City must enter into such agreements between and/or
among South Ohio Land, the City, and KDOT as may be necessary to receive and
administer the awarded KDOT Grant funding; and
(c) Prior to the commitment of any of the Available Funding toward commencement of
the Project, South Ohio Land must enter into an agreement with the City agreeing to
pay any costs of completion of the full scope of the Project in excess of the Available
Funding.
5. Potential Special Assessment Financing of Local Match. The City and South
Ohio Land acknowledge that (a) South Ohio Land may choose to petition for special assessment
financing of that portion of the cost of the Local Match in excess of the City's contribution of
$250.000.00 toward the Local Match and (b)that South Ohio Land anticipates contracting for the
required work included under the Local Match pursuant to a development agreement to be entered
into between South Ohio Land and the City. The City's acknowledgement of South Ohio's intent
is made without predetermining or waiving any of the City's discretionary rights and
responsibilities under applicable law in response to any such applications or requests by South
Ohio Land.
6. Denial of the Grant Application. If the Grant Application is either denied or
ultimately not funded by KDOT for any reason, this Agreement shall be terminated and shall be
of no further force and effect in relation to either (a) the rights and/or obligations of the City or
South Ohio Land under the terms of this Agreement or(b)the rights and/or obligations of the City
or South Ohio Land under the Annexation Agreement, which shall remain in full force and effect
as originally agreed upon.
7. Administration of Agreement. All references in this Agreement requiring the City's
participation or approval shall mean the participation or approval of the city manager or the city
manager's designee, unless otherwise provided herein.
8. Assignment. The Parties acknowledge that participation under this Agreement is
based upon the unique nature and role of each of the City and South Ohio Land. Consequently,
neither this Agreement nor any interest in it shall be assigned or transferred by either the City or
South Ohio Land.
9. Amendment. This Agreement may be amended from time to time upon the
unanimous approval of both the City and South Ohio Land documented by a writing specifically
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stating the amended terms and signed by authorized representatives of the City and South Ohio
Land.
10. Default. If either the City or South Ohio Land fails to comply with any term of
this Agreement within ten(10) business days after written notice to comply has been provided by
the non-defaulting Party to the defaulting Party, such failure shall be deemed an immediate breach
of this Agreement("Event of Default").
11. Remedies. Upon the occurrence of an Event of Default, the non-defaulting party
shall have the following rights and remedies, in addition to any other rights and remedies provided
under this Agreement or by law:
11.1. Termination.The non-defaulting Party shall have the right to terminate this
Agreement or terminate the defaulting Party's rights under this Agreement.
11.2 Other Remedies. The non-defaulting Party may pursue any available
remedy at law or in equity (including specific performance) by suit, action, mandamus or
other proceeding to enforce and compel the performance of the duties and obligations set
forth in this Agreement, to enforce or preserve any other rights or interests of the non-
defaulting Party under this Agreement or otherwise existing at law or in equity and to
recover any damages incurred by the non-defaulting Party resulting from such Event of
Default.
12. Term. This Agreement shall commence effective upon its execution by all parties
and shall remain in effect until the Street Improvements have been completed, inspected, accepted
by the City,and fully paid for in accordance with this and any other agreement between the parties,
unless otherwise terminated pursuant to the terms of this Agreement.
13. General Provisions.
13.1 Time. Time is of the essence in this Agreement and for the performance of
all covenants and conditions of this Agreement.
13.2 Non-appropriation. The Parties acknowledge that the City is subject to
Kansas cash-basis and budget laws, and that payment of the obligations of the City under
this Agreement can only be paid from appropriated funds legally available for such
purpose. Nothing in this Agreement shall be interpreted or construed as a commitment or
requirement that the City obligate or pay funds in contravention of applicable Kansas law.
13.3. Entire agreement. This Agreement constitutes the entire agreement among
the parties and supersedes all prior agreements and understandings pertaining thereto,
whether written or oral. No covenant, representation or condition not expressed in this
Agreement shall affect or be deemed to interpret, change or restrict the express provisions
of this Agreement.
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13.4. Feminine-Masculine, Singular-Plural. Wherever used, singular shall
include the plural,plural the singular,and use of any gender shall include all genders.
13.5. Kansas Law—Interpretation. This Agreement and its validity,construction,
and performance shall be governed by the laws of Kansas. This Agreement shall be
interpreted according to its fair meaning, and not in favor of or against any party.
13.6. Notices. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and delivered personally or sent by registered or certified
mail, return receipt requested, or by generally recognized, prepaid, commercial courier or
overnight air courier service. Notices shall be addressed as appears below for each party:
City of Salina, Kansas: City Clerk
300 W.Ash St.
P.O. Box 736
Salina, KS 67402-0736
South Ohio Land, LLC James Hall
P.O. Box 355
Assaria,KS 67416
13.7. Invalidity in part. In the event that any condition, covenant or other
provision contained in this Agreement is held to be invalid or void by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of this
Agreement and shall in no way affect any other condition, covenant, or provision herein
contained. In the event a provision is deemed invalid, the Parties agree to amend this
Agreement to include a new condition, covenant, or other provision that replicates as
closely as is legally possible under Kansas law the intent of the severed provision.
13.8. Authorized signatories. Each signatory executing this Agreement does
thereby represent and warrant to the other Parties that the signatory has been duly
authorized to deliver this Agreement in the capacity and for the entity for which the
signatory acts.
13.9. Headings. The headings of the sections of this Agreement are included for
the purposes of convenience only and shall not affect the interpretation of any provision of
this Agreement.
13.10. Venue. In the event of any legal action to enforce or interpret this Agreement,
the sole and exclusive venue shall be in the District Court of Saline County, Kansas.
13.11. Parties Bound. This Agreement shall extend to and bind the Parties and their
successors.
13.12. Waiver. No failure or delay by a Party hereto to insist on the strict
performance of any term of this Agreement, or to exercise any right or remedy consequent to
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a breach thereof: shall constitute a waiver of any breach or any subsequent breach of such
term.
13.13. No Third Party Beneficiaries. Solely the parties to this Agreement shall
have rights and may make claims under this Agreement. There are no intended third-party
beneficiaries under this Agreement. and no third parties shall have any rights or make any
claims hereunder.
IN WITNESS WHEREOF.each of the Parties. by its duly authorized representative. has
executed this Agreement on the date shown below the representative's signature.
CITY OF SALINA, KANSAS
By: (7 34
Bill Longbine. l or
Date: /71,-;,c,{ f3 . 2024
2024
Attest:
By: 1,1
Nikki Goding. City Clerk
SOUTH OHIO LAND, LLC
By: f7 egii4;JJ
Roy E.Applequist. Manager
Date: atntiz_ i Z. . 2024
By: if
,lames M. Hall. IV, Manager
Date: or,04-0�, t'+t . 2024
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