Conveyance of Real Estate AGREEMENT
THIS AGREEMENT is made this ~day of June, 1996, by and between
DMH & ASSOCIATES, LLC, a Kansas limited partnership (hereinafter referred to as
"DMH") and the CITY OF SALINA, KANSAS, a municipal corporation (hereinafter
referred to the "City").
WHEREAS, on November 7, 1995, the City entered into an Agreement a
copy of which is attached hereto as Exhibit "A" ("Agreement") with Equitable Life
Assurance Society of the United States ("Equitable") whereby Equitable, as owner
of the Mid State Mall, agreed to convey to the City certain real estate for the
Magnolia Road and Interstate 135 Interchange Project ("Project"); and
WHEREAS, pursuant to the Agreement the City also paid to Equitable
the sum of $56,940.00 which Equitable was to use to construct access improvements
to Magnolia Road upon completion of the Project, all as set forth in paragraph 3 of
the Agreement; and
WHEREAS, Equitable has sold the Mid State Mall to DMH and has
assigned to DMH the Agreement between Equitable and the City; and
WHEREAS, Equitable desires to be released from its obligation to the
City under the Agreement; and
WHEREAS, the City, as a condition to its consent to the Assignment and
release of Equitable, has required that DMH confirm in writing its assumption of
Equitable's obligations under the Agreement.
NOW THEREFORE, in consideration of the foregoing premises, the
parties agree as follows:
1. DMH does hereby confirm and agree to assume Equitable's obligation
to construct the access improvements as required in paragraph 3 of the Agreement
dated November 7, 1995, between Equitable and the City.
2. The City, in conjunction with the receipt of Letter of Credit for the
benefit of the City securing those responsibilities assumed by DMH in the foregoing
paragraph, does herehy consent to the Assignment of the Agreement to DMH and
does further hereby discharge and release Equitable of any and all liability and
responsibility with respect to the construction of the access improvements required
under said Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands the
day and year first above written.
DMH & ASSOCIATES, LLC
]~arrell M. I~fills, Manager
CITY OF SALINA, KANSAS
ATTEST: By: ~vely~/Ma:~well, Mayor
~_/~D. Lo~g, City Cler}~
AGREEMENT
This Agreement is m~.de this ..~'~ay of November, 1995, by and between
EQUITABLE LIFE ASSU~NCE SOC~TY OF THE UNITED STATES, herclnaft~r
refe~ed to ~ th~ "~antor," and tho C~ OF SALINA~ ~SAS, ~ municipal corporation,
herelna~er refc~ed to ~ ~c "City,"
~CIT~S
~ The Gran~r owns the Mid-State M~I located on ~e southwest corner of thc
intersection of Sou~' N~th Street and Magnolia Road in Salina, K~sa (the "Mall").
B. In ordu to provide for construction of the Magnolia ~ad ~d Interstate
interch~ge project (~e "Project"), The City must acquire from ~e ~tor ce~ con,oiled
acc~s highway right-of-way ~d tempora~ e~ement nec~s~ for ~ns~cfion of ~e Project.
C. K~s~ Department of Tr~sponation bidding deadlln~ r~uired ~at the CiW
initiate eminent dom~n proceedings m the Saline County District Cou~ (Case Number 95-CVC-
591) ~ ~sure t~ely acquisi~on o~ ae rift-of-way ~d tempor~ e~ement (the "Eminent
Domain Proceeding"). The p~es wish to ~eUle ~e entire matter of just ~mpensa~on owed by
the City to ~e ~r~tor ~ising from ~ction cftc Projeeg ~clud~g (1) ~e p~chae
r~ic~d acc~s highway right-of-way, (2) ~c p~ehase of temporary e~ement,
r~tfictton of access to ~d from ~e Mall ~ rela~on to Magnolia ~ad resul~g from
construction of ~e Pmjec~ ~d (4) any o~er impact upon or damage to ~aator's prope~y
resulting from ~e Project (referred to ~ ~e aggregate ~ "Just Compensation").
D. The pani~ believe ~e public interest will be b est se~ed by addressing ~e matter
of just compensation for ~e r~i~on of access to and from Grantor's prope~y in relation to
Ma~olia ~ad tn ~e fo~ og improvemen~ to be cons~cted ~ enh~ce Grantor's remaining
ac~s to Magnolia Road (~e "Access hnprovemenB").
FOR AND ~ CONSIDE~TION of mutual and reciprocal promis~ ~d agreements
s~ foah herein, ~e p~ies a~ee ~ follows:
1. Descri~tion. The inter,ts in real estate to be conveyed by ~e Grantor to ~e City
shall be con,oiled access highway right-of-way legally described on Exhibit A to
Agreement ~d re~e~ed to ~ "Tract 4"; and t~por~ easement legally described on ExMbit B
to ~is A~eement ~d refe~ ~ ~ "Tract 4A.' Auached ~ Exhibk C to ~is Agreement
ngmeenng dra~ng dep~ng the tract 4 wi~ at.ss consol, Tract 4& ~d ~e access consol
along Magnolia resulting from ~m~ction of ~e Project.
2. Compen~ati0q. The City agrees ~ pay ~d ~e ~antor agre~ to accept as Just
Compensation ~e total s~ of Two Hundred Two Thousand Six Hundred Ninety-seven and
no/100 Doll~ ($202,697.00), as follows:
3.585 acres or 156,163 square feet at $.90
per square foot $140,546.00
Tract 4A
0.177 acre or 7,710 square feet at $.70
per square foot times 14% times 2 years 1,511.00
Asphalt replacement on temporary easement 3,700.00
Access Improvements
Construct concrete curb and gutter,
1,270 l.f. ~ $15 $19,050.00
Asphalt Overlay, 1.5", 12,500 s.f.
~ $1 12,500.00
Asphalt Full-Depth Patch, 3,000
~ $3 9,000.00
Pavement marking, removal, and
replacement 5,000.00
Sub-Total $45,500.00
25% Contingency 11.390.00
56,940.00
TOTAL $202,697.00
Access Improvements. The parties acknowledge that the estimated cost of Access
Improvements outlined in paragraph (2) is based upon a preliminary access improvement plan.
The Grantor covenants that the amount allocated in paragraph (2) shall be used for access
improvements in accordance with a final access improvement plan submitted to the City for
approval as to the following:
a. Configuration of access does not adversely impact traffic safety;
b. Proper utilization o.f funds allocated in paragraph (:~) for access improvements
excluding utilization of sa.id funds for any landscaping;
such approval by the City shall not be unreasonably withheld. This covenant shall remain in
effect beyond the closing of this Agreement. If Grantor fails to use the amount allocated in
paragraph (2) for access improvements within nine (9) months following construction of the
Project, such unused sums shall be repaid to the City.
4. Parkin~ Snaces. The parties ac-knowledge that the Access Improvements will
result in the elimination of a number of parking spaces in the existing Mall parking lot. The City
assures the Grantor that it will assist the Grantor, as the City normally would, in maximizing
cons'daration of the remaining park,ng spaces when analyzing the Mall's current and future
compliance with the city's zoning regulations regarding off-street parking.
5. Rieht-of-Way Deed and Temporary Easement Document. The Grantor agrees
that the restricted access highway right-of-way shall be conveyed to the City by Grantor's
execution and delivery to the City of a Right-of-Way Deed identical to the copy attached as
Exhibit D to the Agreement, and a Temporary Easement document identical to the copy attached
as Exhibit E to this Agreement. The Right-of-Way Deed and Temporary Easement document
shall be recorded by:.the City with the office of the Saline County Register of Deeds, at the
City's expense.
6. Covenant of Title. Grantor covenants that Grantor is the lawful owner of the real
estate described in paragraph (1) above and that the real estate is not subject to any contract for
sale or other liens and encumbrances except easements and restrictions of record.
?. Title Insurance. The City wishes to insure title to Tract 4, at the City',, expense,
and has obtained a commitment for an owner's title insurance policy covering Tract 4. If
Grantor takes any action between execution of this Agreement and closing which results in the
Grantors' inability to furnish marketable title to the City, then this Agreement shall be null and
void and the Eminent Domain Proceeding shall be completed.
8. Clqsing. Closing shall take place on or before November 8, 1995, (the
"Closing"). At Closing the Grantor shall deliver to the City the fully executed and
acknowledged Right-of-Way Deed and Temporary Easement documents; and the City shall pay
Grantor thc total compensation set forth in paragraph (2) above.
9. Dismissal of Eminent Domain Proceeding. Promptly following the Closing, the
City agre~ to dismiss the Eminent Domain Proceeding and to pay any costs associated
therewith, including reasonable fe~s for work performed by the court-appointed panel of
appraisers. The Grantor agrees to consent to such dismissal of'the Eminent Domain Proceeding.
10. Release from Further Claims. Upon the closing of this Agreement and dismissal
of the Eminent Domain Proceeding, the Grantor releases the City from any further claim for lust
Compensation, and acknowledges that under Kansas law it has no claim and shall make no claim
for expenses (including attorney's fees, private appraiser's fees. other professional fees, and any
other costs) resulting from the City's dismissal of the Eminent Domain Proceeding prior to the
filing of the appraisers' report. This release shall remain in effect beyond the closing of this
agreement,
I I. Allo ion of Exoenses. The allocation of expenses shall be as follows:
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a. The Grantor shall pay all of its own expenses incurred in this matter, including,
but not limited to, attorney's fees, private appraiser's fees, other professional fees, and
any other costs.
b. The City shall pay:
(I) Its own professional fees.
(2) The title insurance premium.
(3) The cost of recording the transfer documents.
(4) The cost~ of the Eminent Domain Proceeding.
1:2. Nonassi~nable. Grantor's rights under this Agreement shall not be assigned
without thc prior written consent of the City.
13. Binding Effectl The terms of this Agreement shall be binding upon and inure to
the benefit of the parties and their successors and assigns..
IN WITNESS WItEREOF, the panles have hereunto set their hands the day and year
first above written.
EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
L'md~a I. Wilmor~, CPM, CSM, CMD
r~l~,.,~r e,e t ere* .x,~2.%.-.~,31ii~iit LINDA O. WILMORE
Tax ID No. d.~/~ -/? 7~,:~ ~-~'
CITY OF SALINA, KANSAS
.. By oh~n ivine~, May~or~
Attest: - -
J~g, (7~y~Clerk
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