Amended and Restated Development Agreement (Recorded with ROD) 1►11►1►►1►1►1►i11►►►►►►►►1►►►1►i 1lII ►►►►1 1111►1111►►►1►i 11113 4►►►1►►►E►��►
REBECCA SEEMAN
" "'' "y\4REGISTER OF DEEDS SALINE COUNTY KANSAS
,,)Book:1436 Page: 1431-1442
Receipt #: 151769 Recording Fee: $208.00
Pages Recorded: 12 Cv
Date Recorded: 3/28/2024 12:13:47 PM
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered into effective as of MArch 12
2024, by and between the City of Salina, Kansas, a municipal corporation (the "City"), and the
Mark Augustine Trust dated December 31, 2002 ("Developer"). The City and the Developer are
each a"Party" and collectively the "Parties."
Recitals
A. Developer owns real property located within the boundaries of City and described
on Exhibit A attached hereto (the "Property"); in connection with Developer's proposed
development of the Property, Developer has applied for approval of the subdivision and platting
of the Property, to be known as "Augustine Addition to the City of Salina, Kansas" (the
"Subdivision");
B. The Property abuts South 9th Street, which is a "direct access perimeter street" as
defined in Salina Code Section 36-74(a)(1)(d);
C. Pursuant to Salina Code Section 36-74(a)(3), the requested subdivision of the
Property shall not be approved unless the portion of South 9th Street abutting the Property (the
"Abutting Street") is or will be improved to the city street standard as part of the development
of the Subdivision, unless the City and Developer enter into a development agreement setting
forth the terms and conditions under which the Developer will: (1) immediately improve the
Abutting Street to an alternate street standard not less than the interim street standard; and (2)
cause or participate in the construction of future improvements necessary to improve the
Abutting Street to the full city street standard;
D. The Abutting Street does not presently meet the interim street standard or the full
city street standard;
E. The governing body has determined that the public interest is not served by
requiring construction of a public sidewalk on the west side of South Ohio Street at the time of
subdivision development.
F. The City has approved but conditioned the recording of the plat for the
Subdivision upon execution of this Agreement setting forth the terms and conditions under
which Developer will improve the Abutting Street to the interim street standard and, at a future
date, pay for the additional improvements necessary to improve the Abutting Street to the full
city street standard.
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NOW THEREFORE, in consideration of the premises and promises contained herein
and other good and valuable consideration, the adequacy and sufficiency of which are hereby
acknowledged,the Parties agree as follows:
1. Definitions. As used in this Agreement, the following words and terms have the
meaning set forth below:
"Deferred Improvement Commencement Date - Curb and Gutter" means the date that the
City provides written notice to Developer demonstrating that the annual average daily traffic
count on the Abutting Street exceeds 7,500 trips per day, or such later date as referenced in a
written notice to Developer, as determined by the City's governing body to be in the best interest
of the City.
"Deferred Improvement Commencement Date - Sidewalk" means the date upon which the
city's public sidewalk network on the west side of South 9th Street reaches the north side of the
Water Well Road-South 9th Street intersection, or such later date as referenced in a written notice
to the Developer, as determined by the governing body to be in the best interest of the City.
"Eligible Costs" means all costs, as defined in K.S.A. 12-6a01, and amendments thereto,
which are incurred in planning, designing, and constructing the Full City Street Standard
Improvements.
"Interim Street Standard Improvements" means the work and improvements to be
performed by Developer or its contractors to bring the Abutting Street up to interim street
standard appliable to existing street improvements, as defined in Salina Code Section 36-
74(a)(1)(f), all as more specifically described on Exhibit B attached hereto and incorporated
herein by this reference.
"Full City Street Standard Improvements" means the work and improvements to be
performed by the City or its contractors to bring the Abutting Street up to full city street
standards, as defined in Salina Code Section 36-74(a)(1)(a), all as more specifically described on
Exhibit C attached hereto and incorporated herein by this reference.
"Related Party" means any party related to the Developer by one of the relationships
described in Section 267(b) of the United States Internal Revenue Code of 1986, as amended and
any successor entity in which the principals of the Developer (either individually or collectively)
or Developer own or control no less than fifty percent (50%) of the voting interest in such
successor entity.
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2. Future Improvements—Interim Street Standard.
2.1. Construction. Developer shall commence and diligently pursue the
construction and completion of the Interim Street Standard Improvements specified in Exhibit B
no later than the Deferred Improvement Commencement Date—Sidewalk
2.2. Developer's Responsibility for Cost. Developer shall be solely
responsible for and will pay the costs of constructing the Interim Street Standard Improvements.
2.3. Construction Standards and Permits. Developer shall construct and
complete the Interim Street Standard Improvements in a good and workmanlike manner, and in
accordance with all applicable City codes, rules and regulations. Before commencement of
construction or development of the Interim Street Standard Improvements, Developer shall
secure any and all permits and approvals which may be required by the City and any other
governmental agency having jurisdiction as to such Work.
3. Future Improvements - Full City Street Standard.
3.1. Deferred Construction by City. The City agrees that construction and
completion of the Full City Street Standard Improvements shall be deferred until the Deferred
Improvement Commencement Date—Curb and Gutter, at which time the City may construct and
complete the Full City Street Standard Improvements, with the Eligible Costs of such
improvements to be paid by Developer pursuant to Section 3.2 or Section 3.3 below.
3.2. Developer's Responsibility for Costs. Developer shall be solely
responsible for and will pay the Eligible Costs of the Full City Street Standard Improvements.
On or after the Deferred Improvement Commencement Date — Curb and Gutter, the City shall
prepare and furnish Developer with a preliminary estimate of the Eligible Costs of the Full City
Street Standard Improvements ("Estimated Cost"). Within thirty (30) days of Developer's
receipt of the Estimated Cost from the City, Developer shall deposit certified funds with the City
in an amount equal to the Estimated Cost, which shall be used by the City to pay for all Eligible
Costs associated with the Full City Street Standard Improvements. If, in the judgment of the
City Manager, there are insufficient amounts on deposit with the City to pay for the projected
Eligible Costs expected to be incurred, Developer shall make a subsequent deposit or deposits to
the City in an amount equal to the amount which in the judgment of the City Manager is required
to provide sufficient funds to pay the projected Eligible Costs. Such additional deposit shall be
made within 7 days of the receipt of Developer of notification by the City Manager of the
amount required. If surplus funds remain on deposit with the City after completion of the Full
City Street Standard Improvements,the City shall disburse such excess funds to Developer.
3.3. Alternative Method of Construction and Financing. Notwithstanding the
City's rights and Developer's obligations under Section 3.2, the City may, as an alternative
method to constructing and financing the Full City Street Standard Improvements, and at any
time after the Deferred Improvement Commencement Date, in its sole discretion, elect to
construct the Full City Street Standard Improvements pursuant to the Kansas General
Improvement and Assessment Law, K.S.A. 12-6a01, et seq. (the "Act"), in which case the
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Book 1436 Page: 1434
Property will be included in the improvement district formed under the Act to fund the Eligible
Costs of the Full City Street Standard Improvements. Developer, on its behalf and on behalf of
its successors and assigns, hereby consents to and irrevocably waives the right to protest the
construction of the Full City Street Standard Improvements as a special assessment project
pursuant to the Act. For purposes of this Agreement, "rights to protest" shall mean those formal
rights to protest contained in the Act, including but not limited to the right to participate as a
signatory on a petition objecting to or in opposition to any aspect of the Full City Street Standard
Improvements.
4. Default and Remedies.
4.1. Default. If either party fails to comply with any term of this Agreement
within ten (10) days after written notice to comply has been mailed or delivered by the non-
defaulting party to the defaulting party, such failure shall be deemed an immediate breach of this
Agreement("Event of Default").
4.2. Remedies. Upon the occurrence of an Event of Default, the aggrieved
Party may pursue any available remedy at law or in equity, including, but not limited to
proceedings 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.
5. Binding Covenant; Successors and Assigns.
5.1 Binding Covenant Running with the Land. This Agreement SHALL RUN
WITH THE LAND AND SHALL BE BINDING UPON ALL PARTIES NOW HAVING OR
HEREAFTER ACQUIRING ANY RIGHT, TITLE, OR INTEREST IN THE PROPERTY OR
ANY PART THEREOF for a period of twenty-five (25) years from the date of this Agreement.
A copy of this Agreement shall be recorded and indexed to the Property in the records of the
Saline County Register of Deeds.
5.2 No Assignment; Exceptions. Until completion of the Full City Street
Standard Improvements has occurred, and subject to the following exceptions, the obligations of
Developer under this Agreement may not be assigned in whole or in part without the prior
written approval of City, which approval will not be unreasonably withheld, conditioned, or
delayed upon a reasonable demonstration by Developer of the proposed assignee's experience
and financial capability to undertake and fulfill Developer's obligations under Section 3.2, all in
accordance with this Agreement. The City hereby approves, and no prior consent will be
required in connection with:
(1) the right of Developer to encumber or collaterally assign its interest in the
Property or any portion thereof or any interest in the Agreement to secure loans, advances
or extensions of credit to finance improvements to the Property.
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. Book 1436 Page: 1435
(2) the right of Developer to assign Developer's rights, duties and obligations
under the Agreement to a Related Party; or
(3) the right of Developer to sell or lease individual portions of the Property in
the ordinary course of the development of the Property;
provided that in each such event Developer named herein will remain liable hereunder for the
obligations set forth in Section 3.
6. Notices. Any notice, demand or other communication required by this
Agreement to be given by either Party hereto to the other will be in writing and will be
sufficiently given or delivered if dispatched by certified United State first class mail, postage
prepaid, or delivered personally:
In the case of Developer, to: Mark Augustine Trust
Attn: Mark Augustine
P.O. Box 647
Salina, KS 67402-0647
In the case of City, to: City of Salina, Kansas
Attn: City Manager
300 W. Ash Street
Salina, KS 67401
Or to such other address with respect to either Party as that Party may, from time to time,
designate in writing and forward to the other as provided in this Section 6.6.
7. Choice of Law. This Agreement will be deemed to have been fully executed,
made by the Parties in, and governed by the laws of State of Kansas for all purposes and intents.
8. Entire Agreement; Amendment. The Parties agree that this Agreement, the
Development Plan, and the Funding Agreement, collectively constitute the entire agreement
between the Parties and that no other agreements or representations other than those contained in
this Agreement have been made by the Parties. This Agreement may be amended only in writing
and effective when signed by the authorized agents of the Parties.
9. Authority and Consent to Transaction. Each party represents to the other that
the person executing this Agreement has full and legal authority to bind such party to the terms
of this Agreement, and that the execution and delivery of this Agreement have been duly and
validly authorized by the governing body of each party.
10. No Partnership. Nothing contained herein will be construed as creating a
partnership between the Parties.
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Book 1436 Page: 1436
11. Counterparts. This Agreement is executed in multiple counterparts, each of
which constitute one and the same instruments.
12. Severability. If any term or provision of this Agreement is held to be
unenforceable by a court of competent jurisdiction, the remainder will continue in full force and
effect, to the extent the remainder can be given effect without the invalid provision.
{Signature page follows}
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Book 1436 Page: 1437
IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be
executed in their respective names and the City has caused its seal to be affixed thereto, and
attested as to the date first above written.
CITY OF SALINA, KANSAS
(SEAL) By. D� �
Bil Longbine, Ma r
ATTEST:
By: ._
Nikki Goding, City Clerk
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF SALINE )
This instrument was acknowledged before me on 141 Arct, Z , 2024, by Bill
Longbine, Mayor, and Nikki Goding, City Clerk, of the City of Salina, Kansas, a Kansas
municipal corporation.
MARISSA C. PATTON Notary Public
(SEAL Notary Pubc-State of Kansas
) My Appt.Expires /2 2 L
ZWN
Typed or Printed Name of Notary Public
My Appointment Expires:
Si 2 / 26
I
(Signature Page to Development Agreement)
Boolc 1436 Page: 1438
[DEVELOPER] [DEVELOPER]
By:
// B By: (-(9)1
Name: Ma A. Augustine 0 Name: Rebecca L. Augustine
Title: Trustee of the Mark Augustine Trust Title: Trustee of the Mark Augustine Trust
dated December 31, 2002 dated December 31, 2002
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF SALINE )
This instrument was acknowledged before me on this mph f7 day of 2024, by Mark
A. Augustine and Rebecca L. Augustine as trustees of the Mark A. Augustine Trust dated
December 31, 2002.
JUDD BIRCHER
jailsNOTARY PUBLIC
STATE OF
APPL B7No . iiblic
(SEAL)
sdd d;J-c4 --
Typed or Printed Name of Notary Public
My Appointment Expires:
tie /z7 izozif
4
(Signature Page to Development Agreement)
N •
A_
,
. .
Boolc 1436 Page: 1439
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SCHEDULE OF EXHIBITS
Exhibit A Property Description
Exhibit B Description of Interim Street Standard Improvements
Exhibit C Description of Full City Street Standard Improvements
Book 1436 Page: 1440
EXHIBIT A
PROPERTY DESCRIPTION
Lots 1 —4, Block 1 of the Augustine Addition
to the City of Salina, Saline County, KS
A-1
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EXHIBIT B
DESCRIPTION OF INTERIM STREET STANDARD IMPROVEMENTS
A. The Developer shall construct a five (5) foot concrete public sidewalk on the west side of
South 9th Street connecting with Water Well Road and abutting Lots 1, 2, 3, and 4, Block
1 of the Augustine Addition.
B-1
• Baolc 1436 Page: 1442
EXHIBIT C
DESCRIPTION OF FULL CITY STREET STANDARD IMPROVEMENT
Installation of fully functional curb and gutter storm drainage on the west side of South 9th Street,
along the entire 1,331 feet of frontage of the Property.
For the avoidance of doubt, Developer shall be responsible for 100% of the Eligible Costs
associated with the above-described work and improvements to bring only the following portions
of the Abutting Street up to full city street standards: the west side of South 9th Street along the
entire 1,331 feet of frontage of the Property.
I
C-1
DO
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SCANNED