Real Estate Agreement
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AGREEMENT
THIS AGREEMENT is made this ~ day of --~~I' 20<3' by and
between D.K, Inc., a corporation existing under the laws of the st te of Kansas
(hereinafter "Seller") and the City of Salina, a municipal corpora ion existing under the
lavis of the state of Kansas (hereinafter "Buyer").
WHEREAS, Seller is the owner of certain real property which is legally described at
Exhibit "A". which is attached hereto and incorporated herein by reference; and
WHEREAS, Buyer is undertaking a roadway improvement project in the vicinity of
Seller's real property.. and Buyer has determined it is necessary to acquire the pOltion of Seller's
real property described at Exhibit "A" for such project; and
WHEREAS, pursuant to applicable Kansas statutes, Buyer has the power of eminent
domain to acquire real property for its lawful public purposes; and
WHEREAS, in lieu of Buyer's exercise of its power of eminent domain Seller is willing to
sell and Buyer is willing to purchase Seller's real property described at Exhibit A, and by this
written Agreement the parties desire and intend to set forth the terms and conditions of their
ägreement in writing.
NOW, THEREFORE, in consideration ofthe mutual covenants contained herein and other
good and valuable consideration, the receipt and suftïciency of which is hereby acknowledged,
the parties agree as follows:
I. Seller agrees to sell and Buyer agrees to purchase the following described real
property: See Exhibit A, which is attached hereto and incorporated by reterence.
2. Purchase Price. The purchase price for such real property is $104,600, payable at
closing.
]. &stricJive Ço...Y~llant. As addition; c'JnsideraìÌon. Seller agrees to attach a restrictive.
covenant ~as descríbed in l'-xhlbit "B") for the use of the tI act of land tas described in Exhibit A)
conveyed from Ruyer to Seller pursuant to this A!!rec:l1ent.
4. Fee Simple Title. Buyer shall obtain a certification of title, and Seller agrees to
prav id:: merchantable fee simple title to Buyer as of the date of recording of the deed.. subject
only to such liens and encumL'anccs as may be approvec by Buyèr. Buyer shall, Nithìn fourteen
days (14) days prior to closing, deliver such commitment to Seller. Seller shall, prior to closing,
secure and file any and all lien releases as may be necessary in order to deliver merch:mtable fee
S ill1 pic title to Buyer. In the event that Seller is unable to secure such releases. Buyer shall be
entitled to extend closing for up to thirty (30) Jays in order to secure and file releases. or Buyer,
at its option, may utilize as much of the above-stated purchase price as is necessary \0 satisfy any
and all such liens which encumber merchantable fee simple title. Buyer shall be responsible for
paying all title insurance premiums.
5. Proration. Seller shall pay all real property and other taxes, general and special, all
assessments of any kind or nature, which are due and have accrued at the date of Closing, and
Buyer shall assume such taxes or assessments which become due and owing after the date of
Closing.
6. Closing Costs. Buyer agrees to pay the costs of recording all deeds and other
instruments tendered to it.
7. Real Estate Commissions. The parties represent that neither has engaged the services
of a real estate agent or broker in relation to this transaction, and that to the best of their
respective knowledge no person or entity has a claim for any commission in connection with this
transaction. In the event that any person or entity claims a commission from Seller for services
provided to Seller in relation to this transaction, such commissions are the sale responsibility of
Seller. Seller agrees to indemnify and hold Buyer harmless from and against any and all liability,
costs and expenses, including reasonable attorneys' fees, arising out of or pertaining in any
manner to any claim for any such commission claimed from Seller. In the event that any person
or entity claims a commission from Buyer for services provided to Buyer in relation to this
transaction, such commissions are the sale responsibility of Buyer. Buyer agrees to indemnify
and hold Seller harmless from and against any and all liability, costs and expenses, including
reasonable attorneys' fees, arising out of or pertaining in any manner to any claim for any
such commission claimed from Buyer.
8. Possession Delivered at Closing. Seller shall be entitled to possession of the property
prior to closing. Absolute and unqualified possession shall be delivered to Buyer at 5:00 p.m. on
the date of closing, unless extended in writing by Buyer.
9. Notices. The delivery of any documentation or notices as provided hereunder shall be
made with respect to Seller to O.K., Inc. c/o Mr. Daniel Diederich, 2035 East Iron, Suite 104,
Salina, Kansas. 67401, and with respect to Buyer to Tim Orrick, Foth & Orrick, LLP., 11900
College Boulevan,l, Suite 210, Overland Park, Kansas, 66213. or at such other places as the
parties shall hereinafter designate in writing.
10. Closing. The sale and purchase provided herein shall be consummated at a Closing
to be held at Land Title Services. Inc., 136 N. ill Street, Salina, Kansas, 67401, on January 13,
2005, or at another date and time designated by the parties. The date and event of the sale and
purchase are. respectively, herein referred to as the "Closing Date" and the "Closing". On the
Closing Date, Sellers shall deliver to Buyer a Warranty Deed conveying to Buyer the property
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herein sold free and clear of all liens, taxes, charges and encumbrances whatsoever, excepting
those recorded restrictions and easements approved by Buyer. At the Closing, all monies and
papers shall be delivered and all other things called for by this Agreement shall be done,
including the proration of taxes, assessments, and other items called for in this contract.
1]. Authority to Execute Agreement. Each of the persons executing this Agreement on
behalf of the respective parties represents and warrants that they have the authority to bind the
party on behalf of whom they sign this Agreement, and that all acts requisite to the authorization
to enter into this Agreement have been taken and completed.
12. Choice of Law. The law of the State of Kansas shall govern the rights of the parties
with respect to this agreement.
13. Entire Agreement. This contract contains the entire agreement between the parties
regarding the subject matter of this agreement. All prior oral or written statements relating to the
subject matter of this Agreement are merged into this written Agreement, and no promise or
agreement not herein expressed has been made by the parties. None of the provisions contained
in the Agreement may be changed except by an instrument in writing signed by all of the parties
hereto.
14. Agreement Binding. This agreement, and the obligations of the parties, are joint and
several obligations of the respective parties, and shall be binding upon the heirs, executors,
successors or assigns of the respective parties.
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IN WITNESS WHEREOF, the said parties have hereto set their hands the day and year
first above written.
1Îj;;Jjl<~,~
O.K., Inc.
By: Don P. Diederich, President
Tax 10# ~ fJ - 0 9.J.. 87~~
ACKNOWLEDGMENT
ST A TE OF KANSAS
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)SS.
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COUNTY OF SALINE
li.#- 'Î
BE IT REMEMBERED that on this ~day of '. 20Q.S'before me, the undersigned, a
notary public in and for the county and state aforesaid, came on P. Die erich who is personally known to me to be the
President of O.K.. Inc. and the same person who executed the within ins rument of writing and such pcrson duly
acknowledged the execution of the same for the purposes and consideration therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last
above written.
My appointment expo "
BUYER:
b~
By:
ACKNOWLEDGMENT
STATE OF KANSAS
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)SS.
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COUNTY OF ~ALlNE
BE IT REMEMBERED that on this t:L+ìJay of 'S'G..r--,¡ .I.~' 200.í"before me, the undersigned, a
notary public in and for the county and state aforesaid, came Monte D. Shadwick. the Mayor of Salina, Kansas. who is
personally knO\~n to me to be the same person who exeeukd the within ¡~slrument of writing and such person c:u'y
acknowledged the execution of the same on behalf of the City of Salina It)r the purposes and consideration therein
expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and aftï'œd my ortïeial sea! the day and year last
above written.
Il'..o 0 ~ ~ A- .--=Lr~
Notary Puh IC -~~o-O'-_o-
My appointment expires:l.p ,e:¡ IO~
ft. KEllY A. FABRIZI US
EI,Ia Notary Public - State of Kansas
M A pI. Ex ires June 9, 2008
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Exhibit A
LEGAL DESCRIPTION OF REAL PROPERTY TO BE CONVEYED
Project Tract No. 18:
FEE SIMPLE TITLE:
A fee simple interest in a tract of land in Lee Industrial Park, according to the plat thereof
recorded in the office of the Register of Deeds of Saline County, Kansas, on April I, 1964, in
Book A-3 of Plats at Page 36, lying South and West of the City of Salina Flood Control right of
way, situated in the South Half (S/2) of the Southeast Quarter (SE/4) of Section Six (6),
Township Fourteen (14) South, Range Two (2) West of the 6th P.M, in Saline County, Kansas,
and more particularly described as follows:
Beginning at the Southeast corner of said Southeast Quarter;
Thence Northerly along the East line of said Southeast Quarter, on an assumed bearing ofN
00°15'01" W, a distance of897.59 feet;
Thence S 89°44'59" W, along the South line of said Flood Control right of way line, a distance of
233.28 feet;
Thence N 24°24'23" W, along said right of way line, a distance of 305.81 feet to a point on the
existing southerly Union Pacific Railroad right of way line;
Thence S 68°20 '28" W, along said right of way line, a distance of 872.12 feet:
Thence Southeasterly along a 658.16-foot radius non-tangent curve to the right, an arc length of
827.82 feet and having a chord which bears S 34°37'32" E, a distance of774.32 feet;
Thence S 01°24'26" W, a distance of98.51 feet;
Thence S 07°46 '0 I" W, a distance of 123 AI feet to a point on South line of said Southeast
Quarter;
Thence N 89°38' 14" E, along said South line, a distance of 753.25 feet to the POINT OF
BEGINNING.
Said tract contains 19.87 acres, more or less, including existing road right of way.
AND
FEE SIMPLE TITLE:
A fee simple interest in a tract of land in Lee Industrial Park. according to the plat thereof
recorded in the office of the Register of Deeds of Saline County, Kansas, on April I, 1964, in
Book A-3 of Plats at Page 36, lying South and West of the City of Salina Flood Control right of
way. situated in the South Half (S/2) of the Southeast Quarter (SE/4) of Section Six (6),
Township Fourteen (14) South. Range Two (2) West of the 61h P.M. in Saline County, Kansas.
and more particularly described as follows:
Commencing at the Southeast corner of said Southeast Quarter;
Thence Northerly along the East line of said Southeast Quarter, on an assumed bearing of N
00°15'01" W, a distance of897.59 feet;
Thence S 89°44'59" W, along the South line of said Flood Control right of way line, a distance of
233.28 feet;
Thence N 24°24 '23" W, along said right of way line. a distance of 305. 8] feet to a point on the
existing southerly Union Pacific Railroad right of way line:
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Thence S 68°20'28" W, along said right of way line, a distance of 1027.93 feet;
Thence N 00°13'46" W, along said right of way line, a distance of90.61 feet to the Point of
Beginning;
Thence N 00°[3'46" W, along said right of way line, a distance of27.56 feet;
Thence S 68°20'28" W, along said right of \vay line, a distance of 64.07 feet;
Thence Southeasterly along a 658.16-foot rad:us non-tangent curve to the right, an arc length of
59.81 feet and having a chord which bears S 86°15'06" E, a distance of59.79 feet to the POINT
OF BEGINNING;
Said tract contains 0.02 acres, (794 square feet), more or less.
AND
TEMPORARY EASEMENT:
A tract of land in Lee Industrial Park, according to the plat thereof recorded in the office of the
Register of Deeds of Saline County, Kansas, on April I, 1964, in Book A-3 of Plats at Page 36,
lying South and West of the City of Salina Flood Control right of way, situated in the South Half
(S/2) of the Southeast Quarter (SE/4) of Section Six (6), Township Fourteen (14) South, Range
Two (2) West of the 6th P.M. in Saline County, Kansas, and more particularly described as
follows:
Commencing at the Southeast corner of said Southeast Quarter;
Thence Westerly along the South line, on an assumed bearing of S 89°38' 14" W, a distance of
753.25 feet to the Point of Beginning;
Thence N 07°46'01" E, a distance of43.93 feet;
Thence S 67°33' 46" W, a distance of 1 15.71 feet to a point on the South line of said Southeast
Quarter;
Thence N 89°38'14" E, along said South line, a distance of 101.02 feet to the POINT OF
BEGINNING.
Said tract contains 0.05 acres. (2197 square feet), more or less.
AND
TEMPORARY EASEMENT:
A tract of land in Lee Industrial Park, according to the plat thereof recorded in the office of the
Register of Deeds of Saline County, Kansas. on April 1, 1964, in Book A-] of Plats at Page 36,
lying South and West of the City of Salina Flood Control right of way, situated in the South Half
(S/2) of the Southeast Qua11er (SE/4) of Section Six (6). Township Fourteen (14) South, Range
Two (2) West of the 6th P.M. in Saline County, Kansas. and more particularly described as
follows:
Commencing at the Southeast corner of said Southeast Quarter;
Thence No11herly along the East line of said Southeast Quarter, on an assumed bearing ofN
00°15'0 I ,. W, a distance of 897.59 feet;
Thence S 89°44'59" W, along the South line of said Flood Control right of way line. a distance of
233.28 feet:
Thence N 24°24'23" W. along said right of way line, a distance of305.81 teet to a point all the
existing southerly Union Pacific Railroad right of way line;
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Thence S 68°20'28" W, along said right of way line, a distance of 1027.93 feet;
Thence N 00°13'46" W, along said right of way line, a distance of60.40 feet to the Point of
Beginning;
Thence N 00°13'46" W along said right of way line, a distance of30.21 feet;
Thence Northwesterly along a 658.16-foot radius non-tangent curve to the left, an arc length of
59.81 feet and having a chord which bears N 86°15 '06" W, a distance of 59.79 feet to a point on
said southerly railroad right of way line;
Thence S 68°20'28" W, along said right of way line, a distance of 24.72 feet to a point on the
West line of said Lee Industrial Park;
Thence S 00°13'46' E, along said West line, a distance of20.82 feet;
Thence S 87°06'37" E, a distance of 82.77 feet to a point to the POINT OF BEGINNING;
Said tract contains 0.06 acres, (2453 square feet), more or less.
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Exhibit B
RESTRICTIVE COVENANT FOR USE IN WARRANTY DEED:
DK, Inc. and the City acknowledge (1) that the City is acquiring the Real Estate in
conjunction with the North Ohio Street Railroad Grade Separation Project for the primary
purpose of providing for the construction and railroad use of new spur tracks connecting the
Union Pacific mainline to the Scoular Elevator spur and sidings (the "Railroad Use") and (2) that
upon conveyance of title to the Real Estate, DK, Inc. shall remain in ownership of a tract legally
described on the attached and incorporated Exhibit C (the "Remaining Tract").
The City covenants that its use of the Real Estate for purposes other than the Railroad
Use shall not include:
(1)
(2)
The storage, treatment, or disposal of sewage!;
The storage, treatment, or disposal ofwastewater2, including the application of sewage
sludge3 (also referred to as "biosolids");
The storage, treatment, or disposal of solid waste4, other than as a:
(3)
(a)
(b)
(c)
(d)
household hazardous waste facility5;
yard-waste6 storage, processing and composting facilit/;
tree and limb storage, processing, and chipping facility; or
cut or chipped wood and compost distribution facility;
all of which, to the extent operated by or on behalf of the City, shall be operated without open
burning8 and in compliance with all applicable law;
or
(4) Any use which interferes with the use, enjoyment, access to, or quiet peaceable
possession of the Remaining Tract.
This covenant shall be binding upon and run with the Real Estate until released or
modified in writing by DK, Inc., or its successors or assigns in ownership of the Remaining Tract.
IK.S.A 65-164(b).
2Salina Code Sec. 41-110(69).
340 CFR 503.9(w).
4K.S.A.65-3402(a).
5K.S.A.65-3402(z).
6K.A.R.28-29-3(gg).
7K.S.A.65-3402(y).
8K.A.R.28-29-3(v).
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Exhibit C
O.K., Inc.- REMAINING PROPERTY
A tract ofland in Lee Industrial Park, according to the plat thereof recorded in the office of the
Register of Deeds of Saline County, Kansas, on April I, 1964, in Book A-3 of Plats at Page 36,
lying South and West of the City of Salina Flood Control right of way, situated in the South Half
(S/2) of the Southeast Quarter (SE/4) of Section Six (6), Township Fourteen (14) South, Range
Two (2) West of the 6th P.M. in Saline County, Kansas, and more particularly described as
follows
Beginning at a point on the south line, 753.25 feet west of the Southeast corner of said Southeast
Quarter, said south line having an assumed bearing ofS 89°38'14" W;
Thence N 07°46'0 I" E, a distance of 123.41 feet;
Thence N 0 I °24 '26" E, a distance of 98.51 feet;
Thence Northwesterly along a 658.16-foot radius curve to the left, an arc distance of 827 .82 feet
and having a chord which bears N 34°37'32" W, a distance of 774.32 feet to a point on the
existing southerly Union Pacific Railroad right of way line;
Thence S 68°20'28" W, along said right of way line, a distance of 155.81 feet;
Thence N 00°13'46" W, along said right of way line, a distance of90.61 feet;
Thence Northwesterly along a 658.16-foot radius curve to the left, an arc distance of 59.81 feet
and having a chord which bears N 86° 15' 06" W, a distance of 59.79 feet to a point on said
railroad right of way line;
Thence S 68°20'28" W, along said right of way line, a distance of24.72 feet to a point on the
west line of said Lee I ndustrial Park;
Thence S 00° 13' 46" E, along said west line extended, a distance of 889.92 feet to a point on the
South line of said Southeast Quarter;
Thence N 89°38' 14" E, along said south line, a distance of 645.13 feet to the POINT OF
BEGINNING.
Said tract contains 11.39 acres, more or less.
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