Loading...
Annexation Diamond Drive " AN AGREEMENT REGARDING THE ANNEXATION OF THE COM CO TRACT LOCATED ON THE NORTH SIDE OF DIAMOND DRIVE WEST OF NORTH NINTH STREET This Annexation Agreement ("Agreement") is made and entered into thisZkfbday Febru4rt 2007 by and between the City of Salina, Kansas, a municipal corporation, hereinafter referred to as "City" and Com Co of Kansas, Inc., a Kansas Corporation, hereinafter referred to as "Owner". STAiE OF KANSAS}. FilEO FOR RECORO . RECITALS ~OUN1YOFSAlINE SS,vlIINMYOFFICEAT 3~'CLOCII MAR 0 6 2007 AND DULY I - M. RECORDED . VOl.Qf . ATPAGE IlfJl()-117/ ~ nEG.or r-EEOl' Owner is the owner of a 36.29 acre tract of land locate In e es acres 0 me VIles Half of the Northeast Quarter of Section Thirty-Five (35), Township Thirteen (13) South, Range Three (3) West of the Sixth Principal Meridian in Saline County, Kansas, hereinafter referred to as the "Com Co Tract" and more specifically described on the attached Exhibit "An and depicted on the attached Exhibit "B". II. The Com Co Tract is currently shown as a Secondary and Rural Service Area for the extension of city utilities and services and as future site for light industrial/business park uses in the City of Salina's Future Land Use Plan. III. The Com Co Tract is not currently served by public water and sanitary sewer lines except for a ----- 8 inch water line along the eastern boundary of the tract. IV. A fully looped water distribution system extending from the northeast corner of the Com Co Tract, west along the northern boundary to the western boundary of the tract, then south to Diamond Drive and then east along the southern boundary of the tract to the existing 8 inch line at the southeast corner of the tract must be installed, an 8 inch sanitary sewer main must be extended and Diamond Drive needs to be constructed to city public street standards in order for any commercial or Boou: 1146 Page: 1161 indu?trial development to occur on the Com Co Tract. V. Owner has made a request to be annexed into the corporate limits of the City of Salina, Kansas, and the City is agreeable to such annexation provided there is an agreement acknowledging that Owner and its successors, heirs and assigns will be obligated to pay their proportionate share of water main, sanitary sewer, public street and drainage improvements serving the Com Co Tract at the time of actual platting and development and to dedicate needed land for public street, utility and drainage improvements to allow the public improvements cited in this agreement to be constructed. VI. This agreement is being entered into pursuant to the authority granted by K.SA 12 - 535. NOW THEREFORE, IN CONSIDERATION of the mutual covenants contained herein, the parties do agree as follows: 1. Amendment of Comprehensive Plan. The City concurrently with approval of this agreement agrees to amend the Comprehensive Plan of the City of Salina as follows: That the Salina Service Area Map (Figure 18, P, 172) of the Comprehensive Plan of the City of Salina be amended to show the Com Co Tract changed from Rural Service and a Secondary Service Area to a Primary Service Area for the extension of City utilities and services and eligibility for special assessment financing. 2. Annexation by City. The City concurrently with approval of this agreement agrees to annex the Com Co Tract into the corporate limits of the city. 3. Improvements to the City's Water Distribution System. Owner understands and acknowledges that the Com Co Tract is presently only partially serviceable by the City's public water system. Owner further understands and acknowledges that without the public water system east of the Com Co Tract being looped around the Owner's property, the City can not provide fire protection or issue building permits for new development on the Com Co Tract. 2 DOOK: ll~b ~age: ll~ , . A majority of property owners along Diamond Drive have filed a petition to initiate construction of an 8 inch water line loop around the Com Co Tract to serve properties on both sides of Diamond Drive. Owner agrees to pay its proportionate share of the construction cost of the above described looped water system through participation in a special assessment benefit district based on the cost of installing the looped water system as identified in the draft West Diamond Drive Benefit District petition and the preliminary engineering estimate and feasibility report dated February 7,2007. If a special assessment benefit district for the above described looped water system is established under K.S.A 12-6a01 et seq. the assessment levied on the Com Co Tract shall be deferred for a period not to exceed 15 years or until such time as the property is platted, whichever occurs first, as provided for in K.S.A 12-6,111. City acknowledges that if any portion of the Com Co Tract is platted, the assessment attributal to the remaining unplatted portion shall be deferred until that remaining portion is platted. City agrees to neither special assess nor charge a fee to any property within the Com Co Tract for any costs associated with the water line upgrade from a 6 inch to an 8 inch line west of North 9th Street. Owner agrees to dedicate twenty (20) foot easements for water lines only along the north and west boundaries of the Com Co Tract. City acknowledges that the proposed water line along the south boundary of the Com Co Tract will be located within the forty (40) foot right-of-way being dedicated for Diamond Drive. Owner understands and acknowledges that Owner will be responsible for the design and construction of internal public water lines to serve individual building lots within the Com Co Tract. These internal water line extensions shall be financed privately by Owner or may be financed over a 15 year period through the creation of a special assessment benefit district under K.S.A 12-6a01 et. seq. 3 " Book: 1146 Page: 1163 Damaqe to Crops. In an effort to minimize any damage to crops, the City, and any 4. independent contractors engaged by the City, agree to make their best effort to schedule installation of the water line crossing the Com Co Tract after the harvest of crops on the property. In the alternative, if installation during growing or planting season can not be avoided, City agrees to compensate Owner and tenant for lost crops based on the historical yield on the property. 5, Sanitary Sewer Extension. Owner understands and acknowledges that the Com Co Tract is not presently serviceable by the City's public sanitary sewer system. Owner understands and acknowledges that a public sanitary sewer system is needed to make Owner's property developable. Owner understands and acknowledges that the Com Co Tract will be made sewerable by the construction of an 8 inch sanitary sewer line that will be installed starting at the west end of the existing Diamond Drive sewer and extend west to the west boundary of the Com Co Tract. Owner agrees to pay its proportionate share of the cost of extending an 8 inch sanitary sewer line to the western boundary of the Com Co Tract. Owner agrees to pay its proportionate share of the construction cost of the above described sanitary sewer extension through participation in a special assessment benefit district based on the cost of installing an 8 inch sewer line as identified in the draft West Diamond Drive Benefit District petition and the preliminary engineering estimate and feasibility report dated February 7, 2007. If a special assessment benefit district for the above described sanitary sewer line is established under K,SA 12-6a01 et seq. the assessment levied on the Corn Co Tract shall be deferred for a period not to exceed 15 years or until such time as the property is platted, whichever occurs first, as provided for in K.SA 12-6, 111. City acknowledges that if any portion of the Com Co Tract is platted, the assessment attributal to the remaining unplatted portion shall be deferred until that remaining portion is platted. City acknowledges that the proposed sanitary sewer line will be located within the forty (40) feet of right-of-way being dedicated for Diamond Drive, 4 Book: 1146 Page: 1164 Owner understands and acknowledges that Owner will be responsible for the design and construction of internal sanitary sewer lines to serve individual building lots within the Com Co Tract. These internal sanitary sewer line extension shall be financed privately by Owner or may be financed over a 15 year period through the creation of a special assessment benefit district under K.S.A. 12- 6a01 et. seq. 6. Street Improvements. Owner understands and acknowledges that Diamond Drive does not meet City standards in its present condition. Owner agrees to dedicate the necessary right-of- way for the north half of Diamond Drive as identified in the draft West Diamond Drive Benefit District petition and the preliminary engineering estimate and feasibility report dated February 7, 2007 through a deed of dedication. Owner agrees to participate in a special assessment benefit district for improvements to Diamond Drive and to pay its proportionate share of the construction cost as identified in the draft West Diamond Drive Benefit District petition and the preliminary engineering estimate and feasibility report dated February 7, 2007. If a special assessment benefit district for Diamond Drive is established under K.S.A. 12-6a01 et seq. the assessment levied on the Com Co Tract shall be deferred for a period of up to 15 years or until such property is platted, whichever occurs first, as provided for in K.S.A. 12-6, 111. City acknowledges that if any portion of the Com Co Tract is platted, the assessment attributal to the remaining unplatted portion shall be deferred until that remaining portion is platted. Owner understands and acknowledges that Owner will be responsible for the design and construction of internal public streets serving individual building lots within the Com Co Tract. The cost of constructing internal streets shall be financed privately by the Owner or may be publicly financed over a 15 year period through the creation of a special assessment benefit district. 7. Access to the Com Co Tract. City agrees as part of the design and construction of Diamond Drive to provide a field access as shown on the engineering plans prepared by McPherson Engineering & Land Surveying Services on the north side of Diamond Drive for an agricultural field 5 Book: 1146 Page: 1165 entrance to the Com Co Tract. Owner understands that future access points to the Com Co Tract will be determined at the time the property is platted. 8. Drainaqe. Owner acknowledges that drainage improvements proposed in the West Diamond Drive Benefit District do not provide a drainage solution for the future development of the Com Co Tract. City agrees not to special assess the Com Co Tract for any drainage improvements associated with the West Diamond Drive project. Owner understands and acknowledges that Owner will be responsible for the design and construction of drainage improvements required as part of the future development of the Com Co Tract and that the required drainage improvements will be determined through a drainage study submitted and reviewed at the time the property is platted. 9. Cost Defined. The words and phrases "cost" or "entire cost" shall be defined in the same manner as defined in K.SA 12-6a01 (d), which specifies how final costs are determined for public improvements financed through a special assessment benefit district 10. Term. This Agreement shall commence on the date first stated above and shall remain in effect until the Com Co Tract has been fully developed in accordance with its terms; provided, however, the parties acknowledge that K.SA 12-535 limits to a term of ten years those provisions of this Agreement that guarantee the apportionment of the costs of improvements made in the area to be annexed between the city at large and the area to be annexed. For that reason, the parties agree that in the event that improvements described in the West Diamond Drive petition have not been constructed within nine years from the commencement of this Agreement the parties shall (a) cooperatively initiate a review of any remaining matters which require apportionment of the costs of improvements to be made in the area to be annexed and (b) enter into such further agreements as may be necessary to fairly address such apportionment of the costs of the improvements. 11. Bindinq Effect. The benefits and burdens of this agreement are intended to attach to and run with the land and shall be binding on and inure to the benefits of the parties and their respective 6 '\"\."~ :":!- -: :':":".'k:_ ;-!:::_.;.{~ 0: .:: "a.en-- Book: 1146 Page: 1166 heirs., successors and assigns. All persons claiming under the parties shall conform to and observe the provisions of this Agreement. 12. Amendments. This Agreement may only be amended or modified in writing signed by the parties to this agreement. 13. Further Assurances. Each party will use its best and reasonable efforts to successfully carry out and complete each task, covenant, and obligation as stated herein. Each of the parties shall cooperate in good faith with the other and shall do any and all acts and execute, acknowledge, and deliver any and all documents so requested in order to satisfy the conditions set forth herein and carry out the intent and purposes of this Agreement. 14. Governinq Law. All aspects of this Agreement shall be governed by the laws of the State of Kansas. The invalidity of any portion of this Agreement shall not invalidate the remaining provisions. 15. Interpretations. Any uncertainty or ambiguity existing herein shall not be interpreted against either party because such party prepared any portion of this Agreement, but shall be interpreted according to the application of rules of interpretation of contracts generally. 16. Construction. Whenever used herein, including acknowledgements, the singular shall be construed to include the plural, the plural the singular, and the use of any gender shall be construed to include and be applicable to all genders as the context shall warrant. 17. Relationship of Parties. Neither the method of computation of funding or any other provisions contained in this Agreement or any acts of any party shall be deemed or construed by the City, Owner, or by any third person to create the relationship of partnership or of joint venture or of any association between the parties other than the contractual relationship stated in this Agreement. 18. Assiqnment. In the case of the assignment of this Agreement by any of the parties, prompt written notice shall be given to the other parties who shall at the time of such notice be furnished with a duplicate of such assignment by such assignor. Any such assignment shall not 7 Boo~: 1146 Page: 1167 terminate the liability of the assignor to perform its obligations hereunder, unless a specific release in writing is given and signed by the other parties to this Agreement. 19. Default. Owner and City agree that the annexation and Comprehensive Plan amendment requested by the Owner promote the public health, safety, and welfare so long as Owner fulfills all of the conditions and responsibilities as set forth in this Agreement. In the event either party defaults in fulfilling any of its covenants and responsibilities as set forth in this Agreement, the party may take such remedies, legal or equitable, which the City may have to enforce this Agreement or to obtain damages for its breach. In the event the City defaults in fulfilling any of its covenants and responsibilities, the City will grant its consent to de-annexation of the property. 20. Indemnification. Owner shall be indemnified and held harmless by City, until such time as the construction of the public water lines is complete, from any liability for damages to any person or any property in or upon the Com Co Tract, including personal property of the City and City's employees, agents, servants, customers or guests, or any independent contractors engaged by City, with respect to any sums Owner is required to pay, including costs and attorney's fees, arising out of any claim made against Owner as a result of the use of or activities on the Com Co Tract by the City, or any of its employees, agents, servants, c;;ustomers or guests, or any independent contractors engaged by City. 21. Not a Takinq - Waiver. Owner acknowledges and agrees that the requirements of the owner under this agreement are (1) related and of proportionate benefit to owner's property and (2) do not constitute a taking of private property without just compensation. Owner waives for itself, and its successors and assigns, any claim to the contrary. Recordation. This Agreement shall be filed in the Office of the Register of Deeds in Saline, County, Kansas at City's cost and expense. 8 : Book: 1146 Page: 1168 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. THE CITY OF SALINA, KANSAS A Municipal Corporation ATTEST: ~~ OIW 01'" ~ by Q{)V\L Donnie D. Marrs, Mayor COM CO OF KANSAS, INC. ~~1,~ Elizabe L. Manetta, President STATE OF KANSAS, SALINE COUNTY, ss: BE IT REMEMBERED, that on this ~ ~ay of - ,2007, before me, the undersigned, a notary public in and for the county and state aforesaid, c me Donnie D. Marrs, Mayor of the City of Salina, Kansas, and Lieu Ann Elsey, City Clerk, who are p rsonally known to me to be the same persons who executed as such officers the within instrument of writing on behalf of the City of Salina, Kansas, and such persons duly acknowledged the execution of the same to be the act and deed of said City. 9 Book: 1146 Page: 1169 IN TESTIMONY WHEREOF, I hereunto set my hand and affixed my official seal the day and year last above written. 1\ . PENNY DAY ~ Notary Public. S te f Kansas My APPt. Expires ~~ My appointment expires: STATE OF KANSAS COUNTY OF SALINE ) ) ss. ) The foregoing instrument was acknowledged before me this ~ay Of,JJ:r. ,2007, by Elizabeth L. Marietta, President of COM CO OF KANSAS, INC. KAREN J. WODKE ~ Notary P\'lblic, State 01 KZ,f\S&5 ..... My Appointment Expires June 09, 2007 +~A' 1 b),x~ Notary Public 10 " Book: 1146 Page: 1170 EXHIBIT A COM CO OF KANSAS INC Description including proposed 40' right-of-way along Diamond Drive A tract of land located in the West 76 acres of the Northeast Quarter of Section 35, Township 13 South, Range 3 West of the Sixth Principal Meridian in Saline County Kansas, More particularly described as follows. Beginning at the Southwest corner of said Northeast Quarter; Thence, on an assumed bearing of N 000 01' 39" E along the West line of said Northeast Quarter for a distance of 1246.67 feet to the intersection of the North right-of-way line of Monarch Drive extended West; Thence, S 890 59' 18" E for a distance of 1268.07 feet to the Northwest corner of Interstate District North of 1-70 NO.2. Thence, S 000 01' 13" W along the West line of Interstate District North of 1-70 NO.2 for a distance of 1246.41 feet to a point on the South line of said Northeast Quarter. Thence N 900 00' 00" W along said South line a distance of 1268.23 feet to the Point of Beginning; Containing 1,580,799.8 square feet, 36.29 acres more or less. r: EXHIBIT B Annexation Request Area . . I . 1 Inch = 600 Feet 00 . 5)- i!I.m~ ~R.1fI ;;LOr., ;/I Cl1 .... ~. 1171 I- if) I I- 0> ~ ..' '. . . '" . . .-: ... : ~ ~ , . . ~ . t- :.. 10 .. E ell " . . , . ... . , . .,": : . . ..... .. L: ... ..- ."