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Exchange Property in Fox Run Add AGREEMENT This Agreement is entered into this Mliday of November, 1996, by the City of Salina, Kansas, (the "City") and Melvin Development Company, Inc., ("the Developer"). Recitals A. The City Commission has determined in Resolution Number 95-5006 that two parcels of park land in "Reserve A" of the Fox Run Addition located east of Dry Creek, legally described as Tract A and Tract B on the attached Exhibit A (the "Original Park Property") are no longer needed by the City of Salina for park purposes and that the sale or exchange of the Original Park Property would be in the best interest of the City. B. That determination was prompted by an application for the development of adjacent property into a manufactured home park and was supported by a recommendation by the Parks and Recreation Advisory Board. C. The parties wish to provide for the exchange of the Original Park Property for two parcels of real estate legally described as Tract I and Tract 2 on the attached Exhibit B to be dedicated to the City for park purposes and open space in conjunction with approval of the final plat of the proposed Cedar Creek Estates Subdivision (the "Dedicated Property"). IT IS THEREFORE agreed by the parties: I. Exchange of Real Estate. The City agrees to convey and the Developer agrees to accept the Original Park Property in exchange for the Developer's plat dedication of the Dedicated Property upon the terms and conditions and subject to the contingencies set forth in this Agreement. 2. Contingencies. The exchange of real estate described in Paragraph (1) shall be contingent upon: a. final plat and zoning approval for Cedar Creek Subdivision by the Salina City Commission. b. the Developer's acquisition of marketable title to the real estate being purchased pursuant to the Contract. If either of these contingencies is not fulfilled by the Closing defined below, this Agreement shall be null and void, and the parties shall be released from all obligations herein contained. 3. Closing and Possession. Closing shall be within ten (10) business days of the City Commission's approval of the Cedar Creek Subdivision Final Plat; provided, however, that if marketable title has not been furnished as of that date, the closing shall be the day following the date on which a commitment for title insurance is provided to the acquiring party. Possession shall be transferred to the acquiring party immediately following closing. 4. Title. Title to the tracts to be exchanged shall be conveyed as follows: a. Original Park Prooerty. The City shall convey fee simple title to the Original Park Property by special warranty deed (the "Deed") which shall be executed, acknowledged, and delivered at the time of closing, free of all liens and encumbrances, except easements and restrictions of record, if any. b. Newly Dedicated Park. The Developer shall dedicate the Dedicated Property to the City on the Final Plat of Cedar Creek Subdivision. 5. Title Insurance. Each party shall furnish the other with title insurance in an amount established by the acquiring party. The acquiring party shall pay the title insurance premium applicable to the tract it is acquiring. Each party shall deliver to the other a title insurance commitment in the time prior to closing that will reasonably allow the acquiring party to examine the commitment and to assert any objections to marketable title. Each party will then have a reasonable time in which to satisfy any valid objections to marketable title. In the event either party is unable to furnish marketable title, this Agreement shall become null and void. 6. Real Estate Taxes and Assessments. a. Original Park Property. Real estate taxes and assessments which shall accrue on the Original Park Property subsequent to closing shall be the responsibility of the Developer. b. Newly Dedicated Park. Real estate taxes and assessments for 1996 and all prior years shall be paid by the Developer or its grantors. 7. Simultaneous Recording of Instruments. After closing, the parties agree to arrange for the simultaneous recording of the Deed and the Cedar Creek Subdivision Final Plat. 8. Default. If either party defaults in the payment of any sums due hereunder, or fails to perform any other covenant contained herein after receiving ten (10) days written notice of such breach, then in addition to any other remedies available, at the option of the non- defaulting party, the non-defaulting party shall have the right to (a) begin action to require the specific performance of this Agreement; or (b) seek damages for the failure of the defaulting party to perform this Agreement according to the conditions set forth herein. 9. Captions. The captions heading the various paragraphs are for convenience and shall not be considered to limit, expand, or define the contents of the respective paragraphs. -2- 10. F eminine- Masculine. Singular-Plural. Wherever used, singular shall include the plural, plural the singular, and use of any gender shall include all genders. 11. Kansas Law Applies. 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. 12. Severability. The unenforceability, invalidity, or illegality of any provision of this Contract shall not render the other provisions unenforceable, invalid, or illegal. 13. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and signed by the parties. Should the end of a time period fall on a legal holiday, that termination time shall extend to 5:00 p.m. of the next full business day. 14. Persons Bound-CoDies. This Agreement shall extend to and bind the heirs, executors, administrators, trustees, successors, and assigns of the parties hereto, and may be executed in any number of counterparts, each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 15. Notices. All notices and demands shall be given in writing either by personal service or by registered or certified mail, postage prepaid, and return receipt requested. Notice shall be considered given when received on date appearing on the return receipt, but if the receipt is not returned within five (5) days, then forty-eight (48) hours after deposit in the mail. Notices shall be addressed as appears below for each party, provided that if any party gives notice of a change of name or address, notices to the giver of that notice shall thereafter be given as demanded in that notice. CITY: City Clerk P.O. Box 736 Salina, KS 67402-0736 DEVELOPER: Melvin Development Company, Inc. 1700 North Ninth Street Salina, KS 67401 16. Typewritten or Handwritten Provisions. Typewritten or handwritten provisions inserted or attached shall supersede all conflicting printed provisions. 17. Merger Clause. These terms are intended by the parties as a complete, conclusive, and final expression of all the conditions of their Agreement. No other promises, statements, warranties, agreements, or understandings, oral or written, made before or at the -3- signing thereof, shall be binding unless in writing and signed by all parties and attached hereto. Any amendment to this Contract, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above written. CITY OF SALINA, KANSAS By <~ ;?n~ Evely axwell, Mayor . ATTEST: ~ 1!!fJA~ /D. U>>~ Judy . Lon City Clerk MELVIN DEVELOPMENT COMPANY, INe. By: -4-