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Notice of Special Assessments - Improvement District Development Agreement - Petition 4411 - Magnolia HillsFINANCE DEPARTMENT JoVonna A. Rutherford City Clerk 300 West Ash · P.O. Box 736 Salina, Kansas 67402-0736 I lllllll l llll lllll Ill II I Ill lllll lllll lllll llll 1111111111111111111111111111111111 , ...... ~ . REBECCA SEEMAN _,~~···--·'·0-~.•'.>REGISTER OF DEEDS SALINE COUNTY KANSAS : 'I;: t.'• ~Tf" • .c \ \\;;;;, i:)Book:1398 Page: 757-780 '\i~.;·t:';/ Receipt#: 136527 Recording Fee: $412.00 ···-"'"~ Pages Recorded: 2C)'-J Date Recorded: 8/5/2021 10:24:22 AM City of !l Sdlina TELEPHONE · (785) 309-5735 FAX · (785) 309-5738 jovonna.rutherford@salina.org WEBSITE · www.salina-ks.gov NOTICE OF FUTURE SPECIAL ASSESSMENTS I HEREBY declare that deferred or future special assessments are associated with properties described in the attached Petition No. 4411 and the attached Improvement District Development Agreement. Dated this 22nd day of July, 2021. STATE OF KANSAS, COUNTY OF SALINE, ss: ON THIS 22nd day of July, 2021 , before me a Notary Public in and for said state, personally appeared Jo Vonna A. Rutherford, City Clerk for the City of Salina, known to me to be the person who executed the above Notice of Future Special Assessments and acknowledged to me that she executed the same for the purposes therein stated on behalf of the City of Salina. ASHLEY RUSSELL My Appoinbnent Expires August30, 2022 My appointment expires: ~tWf '3,D, Qt:Q::i City Clerk's Office Filed ,..., PETITION 4411 TO THE GOVERNING BODY OF THE CITY OF SALINA, KANSAS: Book \ Z>j&' Page 151> We, the undersigned, owners of record of property located within the City of Salina, Kansas (the "City") and being the owners of 100% of the area liable for assessment set forth below, do hereby respectively request that the Governing Body of the City create and designate an improvement district for the purpose of making certain improvements in the manner provided by K.S.A. 12-6a01, et seq, specifically K.S.A. 12-6a04(c). 1. The general nature of the proposed improvements are as follows: The excavation, sidewalk ramps, pavement and grading for approximately 2,085 lineal feet of a ten foot wide concrete multi- modal trail along Markley Road (the "Improvements"). 2. The estimated or probable cost of the Improvements is: One hundred sixty-five thousand five hundred sixty-eight dollars and ninety-five cents ($165,568.95). 3. The extent of the proposed improvement district to be assessed is: Magnolia Hills Estates Addition No. 2 /Block 1, Lots 1 through 4,4Iock 2, Lots 1 through 4,vBiock 3, Lots 1 through 14JBlock 4, Lot 1 ,~lock 5, Lots 1 through 9,~lock 6, Lots 1 through 3Jiiock 7, Lots 1 through 9,vBlock 8, Lot 1, all in Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. 4. The proposed method of assessment shall be: Each platted lot in the Improvement District shall be assessed equally per lot for costs of the Improvements to be assessed to the Improvement District. 5. The proposed apportionment of cost between the Improvement District and the City at Large is: 16.1 % of the cost of the Improvements shall be assessed to the Improvement District and 83.9% of the cost of the Improvements shall be paid by the city at large. This Petition is submitted pursuant to K.S.A. l 2-6a04( c ). In accordance with such section, the signers of the Petition acknowledge the following: (a) The signers of this Petition are the owners of 100% of the property or properties proposed to be included in the Improvement District. (b) The proposed Improvement District does not include all properties which may be deemed to benefit from the Improvements. 1 .. Boole 1398 Page: 759 The signers of this Petition further request that the Improvements be made without notice and bearing as required by K.S.A. 12-6a04(a). NAMES MAY NOT BE WITHDRAWN FROM THE PETITION BY THE SIGNERS THEREOF AFTER THE GOVERNING BODY COMMENCES CONSIDERATION OF THE PETITION OR LATER THAN SEVEN (7) DAYS AFTER FILING OF THE PETITION WITH THE CITY CLERK, WHICHEVER OCCURS FIRST. Each signer of this Petition further certifies 1, under oath, that: ( c) The petitioner and its principals do not have a financial interest in any real estate located in the city which is subject to delinquent special assessments or ad valorem taxes as of the date of the petition; ( d) The petitioner and its principals do not have a financial interest in any real estate located in the State of Kansas on which special assessments or ad valorem taxes were delinquent for a period of more than one year during the five-year period immediately preceding the date of the petition; ( e) The petitioner and its principals are not in breach of any outstanding contractual obligations owed to the city as of the date of the petition; and (f) The petitioner and its principals have not been convicted of a felony financial crime, including but not limited to fraud or embezzlement, during the five-year period immediately preceding the date of the petition. J)ctk.d: ~~Q., 1'l2021. 1 These certifications are only required to be made by petitioners for special assessment financing in new developments. 2 ' . Boole 1398 Page: 760 Kelly R. Dunn, President LEGAL DESCRIPTION OF PROPERTY OWNED WITHIN THE PROPOSED IMPROVEMENT DISTRICT: Block 2, Lots 2 through 4; Block 3, Lots 4 through 6, 8 though 14; Block 5, Lots 2 through 9; Block 6, Lots 1through3; Block 7, Lots 1through9; Block 8, Lot 1, all in Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. STATE OF KANSAS ) ) SALINE COUNTY ) ' I, the undersigned Notary Public, hereby certify that the signature appearing above is genuine and that this document was signed before me on this 10-+""day of ~u "~ , 2021 , ~~ t.(ul'I ~.:DUA\'\. tf.<!.s.-decl-o~ .Ma.&nc\;"-~; \\s, ~<-. ft • DAN ST ACK ~ Notary Public -State of Kansas My Appl. Expires December°I& 2"'~ My appointment expires: ' ... NotaryPublic ~Y\ Sta()< 3 Boole 1398 Page: 761 LEGAL DESCRIPTION OF PROPERTY OWNED WITHIN THE PROPOSED IMPROVEMENT DISTRICT: Block 1, Lots 1and4; Block 3, Lots 3, 7, and 14; Block 4, Lot 1; Block 5, Lot 1, all in Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. STATEOFKANSAS ) ) SALINE COUNTY ) I, the undersigned Notary Public, hereby certify that the signature appearing above is genuine and that this docum~qt was signed before ?.\e on this \~ day of . 1 _ f .. ~'-'t\-e. , 2021 \ ~~ ~e...\.\'f Q..°!::H.L~V\ 1 t'r.ns~ o+-~.tll'f lJu.,M c.~ 1 'Ii\c. f\. DAN STACK ~ Notary Public -State of Kansas My Appl. Expires December ).J, 'Jct.., My appointment expires: Notary Public DJn Sfac.J< 4 Book: 1398 Page: 762 JC BUILDERS, INC. LEGAL DESCRIPTION OF PROPERTY OWNED WITHIN THE PROPOSED IMPROVEMENT DISTRICT: Block 1, Lots 2 and 3; Block 3, Lots 1 and 2, all in Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. STATE OF KANSAS ) ) SALINE COUNTY ) I, the undersigned Notary Public, hereby certify that the signature appearing above is g(\nuine and that this document was signed befor-' me on this --Z day of _ J t>.ne , 2021, b. ~ ~t8 :\),'ere.'/ , f+...DS 1ru.m, JC-B u..1 Ide.rs., J.-flC.. • Not~L~~~~~t~e~~~nsas My Appl. Expires /O· •Z. My appointment expires: 5 ' . Boole 1398 Page: 763 JEFFRY & LINDA RJTTEL LEGAL DESCRIPTION OF PROPERTY OWNED WITHIN THE PROPOSED IMPROVEMENT DISTRICT: Block 2, Lot 1, Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. STATE OF KANSAS ) ) SALINE COUNTY ) I, the undersigned Notary Public, hereby certify that the signature appearing above is genuine and that this document was si~ed before me on this I H t'1\day of )LV\e , 2021,. h ~ L; nd~ -KakJ. A. DAN STACK ~ Notary Public • l tatr;i of. Kansas My Appl. Expires De rnt>erJ. i..,. ~ Notary Public Ca. V\ StCtc..K 6 '· Boole 1398 Page: 764 JEFFRY & LINDA RITTEL Linda Rittel LEGAL DESCRIPTION OF PROPERTY OWNED WITHIN THE PROPOSED IMPROVEMENT DISTRICT: Block 2, Lot 1, Magnolia Hills Estates Addition No. 2 to the City of Salina, Saline County, Kansas. STATEOFKANSAS ) ) SALINE COUNTY ) I, the undersigned Notary Public, hereby certify that the signature appearing above is genuine and that this document was signed before me on this ~ day of JCLrt o... , 20211 h~ :::::re.Ier-y 'R:~L 11\ • STEFANIE R. GOODMAN ~ Notary Public -State of Kansas My Appt. Expires (D-(S-2-S My appointment expires: 6 Boole 1398 Page: 765 IMPROVEMENT DISTRICT DEVELOPMENT AGREEMENT by and between the CITY OF SALINA, KANSAS and MAGNOLIA IDLLS, INC. DATED AS OF JUNE 14, 2021 Boole 1398 Page: 766 IMPROVEMENT DISTRICT DEVELOPMENT AGREEMENT This Improvement District Development Agreement (the "Agreement") dated as of June 14, 2021 , by and between the City of Salina, Kansas (the "City"), and Magnolia Hills, Inc., a Kansas corporation (the "Developer"). WHEREAS, on July 7, 2021 , the Developer filed with the City Clerk Petition No. 4411 (the "Petition"), pursuant to K.S.A. 12-6a01 et seq. (the "Act"); and WHEREAS, the Petition requests that the City create the Improvement District, construct the Improvements, assess a portion of the costs thereof against the Improvement District (all as defined in the Petition), and issue the City's general obligation bonds to finance the costs of the Improvements; and WHEREAS, the City has prepared the Preliminary Engineering and Feasibility Report (the "Feasibility Report") related to the Improvements; and WHEREAS, the Developer desires to construct the Improvements and provide financing for the costs of the Improvements until such time as the City issues general obligation bonds to permanently finance the costs of the Improvements, all subject to the terms and conditions of this Agreement; and NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows: 1. Constructing the Improvements. A. Construction. The Developer shall design, construct and install, at its own expense, the Improvements described in the Petition, subject to reimbursement by the City as provided in Paragraph 3 below. The design, construction and installation of the Improvements shall be in accordance with all applicable laws including the City Code, and the Developer shall obtain or shall cause to be obtained all licenses, permits or other approvals required by any governmental authorities to complete the Improvements. B. Timing. The Developer shall begin work on the Improvements promptly after execution of this Agreement and satisfaction of the Developer's obligations under Paragraphs 4 (surety bonds) and 5 .D (contractor warranties) of this Agreement, but no contract shall be let and construction shall not commence until after Resolution No. 21-7957 (creating · the Improvement District and authorizing the Improvements, the "Advisability Resolution") is published in the Salina Journal. All work on the Improvements must be performed with reasonable diligence and work may not cease for more than fifteen (15) consecutive days. If construction of the Improvements has not commenced within 180 days of execution of this Agreement, the City may terminate this Agreement and repeal the Advisability Resolution, and the City shall have no obligation to construct the Improvements or reimburse the Developer for any costs or expenses whatsoever, including but not limited to any costs related to the Improvements and/or costs of negotiating this Agreement. Boole 1398 Page: 767 2. Certifying Completion of the Improvements A. Upon the completion of the Improvements, the Developer shall submit to the City a request for reimbursement, accompanied by copies of all paid invoices for the Improvements, in accordance with Exhibit A. The Developer also shall furnish all records, contracts, bills and other documents relating to the Improvements and the Developer's financing of the costs thereof, that the City reasonably requests in order to verify the amount to be reimbursed pursuant to this Agreement. Further, Developer shall provide to the City adequate documentation that all contractors, engineers or other parties that have provided goods or services for the Improvements have been paid in full by the Developer. B. After receiving the foregoing information, the City will arrange for final inspection of the Improvements. If the Improvements have been completed in substantial compliance with the Advisability Resolution, the City shall certify completion of the Improvements and issue a Certificate of Completion in accordance with Exhibit B. The City shall review all invoices and other requested documentation, inspect the Improvements and either (i) issue to the Developer a Certificate of Completion or (ii) provide to Developer a list of additional required documentation, within 30 days after the Developer submits a request for reimbursement. 3. Reimbursement. A. The City shall reimburse the Developer for the Developer's actual cost of the Improvements, as submitted pursuant to Paragraph 2 of this Agreement. The Developer shall also be reimbursed for interest expense related to financing the costs of the Improvements only to the extent that the Developer has obtained financing from an unrelated third party, and then the Developer shall only be reimbursed for such financing costs as are paid by the Developer to the unrelated third party. B. The maximum total amount of reimbursement to the Developer under this agreement shall be $151,171.65. The Parties agree that the costs shown in the Petition and Feasibility Report are an estimate only, and reimbursement shall be based on the actual expenses incurred by the Developer and verified by the City pursuant to Paragraph 2 of this Agreement; except that, in no event shall the Developer be entitled to reimbursement in excess of the amount shown in this paragraph. C. The City shall not issue any reimbursement payment until all of the following actions have occurred: (i) the Certificate of Completion has been issued in accordance with Paragraph 2 of this Agreement; (ii) an ordinance levying assessments pursuant to the Petition, the Advisability Resolution and the Act has been approved by the City Commission; (iii) the City has issued its general obligation bonds to permanently finance the costs of the Improvements; and (iv) the Developer has furnished to the City a Financial Guarantee equal to 20% of the total cost of the Improvements to be assessed against the Improvement District. a. For purposes of this paragraph, the term "Financial Guarantee" means: (1) cash; (2) escrow account with a financial institution, funded with securities 2 Boole 1398 Page: 768 held in trust for the City's benefit, all as approved at the discretion of the City; (3) irrevocable letter of credit from a financial institution approved at the discretion of the City; or ( 4) surety bond, approved at the discretion of the City as to form, execution and surety. b. The Financial Guarantee shall remain in full force and effect until certificates of occupancy for principal buildings are issued for at least 35% of the properties (by lot) within the Improvement District. c. If any special assessment imposed pursuant to the terms of the ordinance levying assessments is not paid when due on property within the Improvement District, the Financial Guarantee will be applied on July 1 of each year to satisfy the principal, interest and any additional costs or penalties prompted by delinquent payment of such special assessments. Notwithstanding the foregoing, however, the Financial Guarantee shall not be applied in connection with a delinquent payment of a special assessment on property that has been sold by the Developer in a commercially reasonable, arms-length transaction and conveyed to, and is owned by, a person or entity unaffiliated with the Developer. d. Notwithstanding the provisions of Section 9 of Resolution 18-7556 (the City's current policy for financing public improvements through the use of Improvement Districts under the Act),.the Developer shall not be obligated to provide the Financial Guarantee prior to receipt of the Certificate of Completion delivered by the City pursuant to Paragraph 2 of this Agreement. The Developer shall be obligated to provide the Financial Guarantee prior to the date when the City begins marketing its general obligation bonds to permanently finance the costs of the Improvements and reimburse the Developer for the costs thereof. D. The Developer hereby acknowledges that the following actions are required after the Certificate of Completion is issued and before proceeds of the City's general obligation bonds are available to reimburse the Developer: a. City prepares final feasibility study showing final costs of the Improvements and allocation of assessments to each property within the Improvement District; b. City Commission adopts resolution or otherwise provides for the calling of a public hearing on the levy of assessments; c. Notice of public hearing on the levy of assessments is published in the local paper and mailed to all property owners within the Improvement District; d. City Commission holds public hearing on the levy of assessments and considers on first reading the ordinance levying assessments; e. City Commission has second reading and approves ordinance levying assessments; f. Ordinance levying assessments is published in local paper; g. Property owners within the Improvement District are given 30 days to prepay assessments; h. Amount of general obligation bond financing is determined by City (equal to total costs of Improvements less any prepayments); i. City works with Financial Advisor and Bond Counsel to begin marketing general obligation bonds to investors; j. City holds bond sale; Commission approves sale of bonds to best bidder; 3 Boole 1398 Page: 769 k. City works with financing team on various closing matters; 1. City certifies assessment, together with interest, to County for property tax bills; m. City closes bond issue; receives funds to reimburse the Developer. The Developer further acknowledges that the City typically issues general obligation bonds in April of each year. In order for the City to complete all of the above-referenced steps to include financing for the Improvements in a particular year's bond issuance, the Developer must submit the documentation required by Paragraph 2 of this Agreement in sufficient time to permit the City to issue a Certificate of Completion by March 1. If a Certificate of Completion is not issued by January 1, then reimbursement will not occur until the following year's regularly-scheduled general obligation bond issue. The Developer is solely responsible for paying any additional financing costs incurred by the Developer as a result of any delay in the issuance of general obligation bonds for the Improvements, if such financing costs, together with the actual project costs, exceed the maximum reimbursement set forth in Paragraph 3(A) of this Agreement. E. The City will use its best efforts to issue general obligation bonds in April of each year. If the City's issuance of general obligation bonds to permanently finance the Improvements is prevented, hindered or delayed for any reason, the Developer is solely responsible for carrying the costs of the Improvements. The City shall have no obligation to reimburse the Developer unless and until the City issues general obligation bonds for the purpose of financing the Improvements. 4. Payment Bonds. A. Prior to the commencement of work on the Improvements, the Developer shall obtain from its contractor(s) statutory public works bond(s) required by K.S.A. 60-1111 ("Payment Bond"), as follows: (i) [reserved] (ii) A statutory payment bond running to the state of Kansas, conditioned that the contractor as principal shall pay all indebtedness incurred for labor, supplies, equipment, and materials furnished in making the Improvements called for by the contract documents. B. The bond shall be in an amount at least equal to the contract price for the Improvements. The form of bond shall be subject to approval by the City. The bond shall be executed by such sureties as are authorized to conduct business in the state of Kansas. All bonds signed by an agent must be accompanied by a certified copy of the agent's authority to act. The Developer or its contractor shall file a Payment Bond with the Clerk of the Saline County District Court in accordance with K.S.A. 60-1111 (b) and deliver a file-stamped copy to the City Clerk. The premiums for such bonds shall constitute costs chargeable to the Improvement District. The Developer shall indemnify the City and its officers and employees for any damage resulting from failure of the Developer to provide the bonds required by this subsection. 5. Contractor's Warranty to City. 4 Boole 1398 Page: 770 A. If within two years after final acceptance of the Improvements as a whole (as indicated on the Certificate of Completion provided pursuant to Paragraph 2.B of this Agreement), any Improvements are found to be defective, the Developer's contractor for such Improvements shall promptly, without cost to the City and in accordance with the City's written instructions: (i) Correct such defective Improvements; or (ii) If the defective Improvements have been rejected by the City, remove and replace them with Improvements that are not defective; and satisfactorily correct or repair, or remove and replace, any damage to other Improvements or other land or areas resulting therefrom. B. If the Developer's contractor does not promptly comply with the terms of the City's written instructions, or in an emergency where delay would cause serious risk of loss or damage, the City may have the defective Improvements corrected or repaired or may have the rejected Improvements removed and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by the Developer's contractor. C. Where defective Improvements (and damage to other Improvements resulting therefrom) has been corrected or removed and replaced under this paragraph, the warranty period hereunder with respect to such Improvements will be extended for an additional period of two years after such correction or removal and replacement has been satisfactorily completed. D. Prior to the commencement of work on the Improvements, the Developer's contractor(s) constructing the Improvements shall expressly acknowledge and agree in writing to undertake and perform the warranty obligations set forth in this Paragraph 5 as they apply to such contractor's portion(s) of the Improvements. Each contractor shall expressly acknowledge and agree, in its contract with the Developer, that the City (i) is an express third-party beneficiary of the contractor's warranty, (ii) shall be entitled to the rights and benefits thereunder, and (iii) may enforce the provisions thereof as if it were a party thereto. The form of the Developer's contract(s) shall be subject to approval by the City. E. Prior to the date when the City begins marketing its general obligation bonds to permanently finance the costs of the Improvements and reimburse the Developer for the costs thereof, the Developer shall provide a warranty and maintenance bond to the City. The bond shall be in an amount equal to the total cost of the Improvements. The form of bond shall be subject to approval by the City. The bond shall be executed by such sureties as are authorized to conduct business in the state of Kansas. All bonds signed by an agent must be accompanied by a certified copy of the agent's authority to act. Notwithstanding the City's receipt of warranty and maintenance bond, the Developer shall remain fully responsible for all warranty and maintenance obligations set forth in this Paragraph 5. F. The obligations under this paragraph are in addition to any other obligation or warranty, and shall not be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitations or repose. 5 Boole 1398 Page: 771 6. Waiver. THE DEVELOPER HEREBY AGREES TO WAIVE ANY RIGHTS THAT IT MAY HAVE PURSUANT TO KANSAS STATUTES, THE KANSAS CONSTITUTION, THE UNITED STATES CONSTITUTION, OR AS OTHERWISE PROVIDED BY LAW TO OBJECT TO ANY SPECIAL ASSESSMENTS REQUESTED IN THE PETITION AND IMPOSED PURSUANT TO THE ACT. The Developer acknowledges and agrees that this waiver is freely given and with full knowledge of the extent of all statutory, constitutional or other legal rights being waived thereby, and is given in consideration of the City forming the Improvement District and assisting in providing for the financing and construction of the Improvements. 7. Citv Expenses; Deposit. The Developer shall be responsible for the payment of all non-City employee legal, financial and planning consultants for direct out-of-pocket expenses and other reasonable costs resulting from services rendered to the City to review, evaluate, process and consider the Petition and this Agreement (the "City Expenses"). Before this Agreement becomes effective, the Developer shall deposit with the City the sum of $2,500 to pay the City Expenses. If such deposit is insufficient to pay all City Expenses, the Developer shall pay all additional City Expenses within 10 days after presentation of an invoice from the City. The City shall return any unused funds to the Developer on the date when the City reimburses the Developer pursuant to Paragraph 3 of this Agreement. 8. Indemnitv. A. General Indemnity. The Developer shall indemnify, release, defend, be responsible for and forever hold harmless the City, its officers, agents, employees, elected officials, and attorneys, each in their official and individual capacities, from and against all lawsuits, suits, actions, costs, claims, demands, damages, disability, losses, expenses, including reasonable attorney's fees and other defense costs or liabilities of any character and from any cause whatsoever, brought because of bodily injury or death received or sustained, or loss or damage received or sustained, by any person, persons, or property arising out of or resulting from any act, error, omission, or intentional act of the Developer or its agents, employees, or subcontractors in connection with the design, construction, installation and maintenance of the Improvements. B. No Limitations or Waiver. The indemnity required hereunder shall not be limited by reason of any insurance coverage provided by the Developer as required by this Agreement. The City does not, and shall not, waive any rights against the Developer which it may have by reason of this indemnification. This indemnification by the Developer shall not be limited by reason of whether or not the Developer's insurance policies shall have been determined to be applicable to any such damages or claims for damages. C. Use of Independent Contractors. The fact that the Developer carries out any activities connected with the Improvements under this Agreement through independent contractors shall not constitute an avoidance of, or defense to, the Developer's duty of defense and indemnification under this section. 9. Insurance. A. Types and Amount of Coverage. During construction of the Improvements, the Developer agrees to obtain insurance coverage as specified in Exhibit C attached hereto and shall not 6 Boole 1398 Page: 772 make any material modification or change from these specifications without the prior approval of the City. If the Developer subcontracts any of its obligations under this Agreement, the Developer shall require each such subcontractor to obtain insurance coverage as specified in Exhibit C. Failure of the Developer or its subcontractors to comply with these requirements shall not be construed as a waiver of these requirements or provisions and shall not relieve the Developer of liability. B. Rating. All insurance policies shall be issued by insurance companies rated no less than A- VII in the most recent "Bests" insurance guide and admitted in the State of Kansas. Except as otherwise specified in Exhibit C, all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. C. Certificate of Insurance. The parties acknowledge that the Developer has provided the City with a certificate of insurance listing the City as the Certificate Holder and evidencing compliance with the insurance requirements in this Agreement. The City reserves the right to require complete certified copies of all insurance policies procured by the Developer pursuant to this Agreement, including any and all endorsements affecting the coverage required hereunder. 10. Default and Termination. The Developer shall be in default of this Agreement if the Developer fails to comply with any obligations set forth in this Agreement. This Agreement may be terminated at the option of the City if written notice of event of default has been delivered to the Developer by the City and the Developer has not cured such default or is not actively pursuing such cure within thirty (30) days after such notice is delivered. 11. Retention and Inspection of Records. A. Retention. The Developer shall maintain complete, accurate, and clearly identifiable records with respect to the Improvement Costs and any other documents created pursuant to, or arising under, this Agreement, including, but not limited to, all general contractor's sworn statements, general contracts, subcontracts, material purchase orders, waivers of lien, and paid receipts and invoices (collectively, the "Records"). The Records shall be maintained during the term of this Agreement, and for a period of five (5) years after final acceptance of the Improvements as a whole (as indicated on the Certificate of Completion provided pursuant to Paragraph 2.B of this Agreement) (the "Retention Period"); provided, however, that if any litigation, claim or audit is commenced prior to the expiration of the Retention Period, then the Retention Period shall be extended until all litigation, claims or audit findings have been completely terminated or resolved, without right of further appeal. B. Inspection. During the Retention Period, the Developer shall allow a representative of the City, with reasonable advance notice and during normal business hours, to examine, audit, and make transcripts or copies of the Records. Notwithstanding the foregoing, during the last three (3) calendar years of the Retention Period (plus any extension pursuant to Paragraph 11.A above), the City shall only be entitled to inspect the Records if the City reasonably determines, based on a post-project review or audit of the Improvements or the City's then-available records relating to the Improvements, that the City may have paid the Developer for work not properly rendered, or reimbursed the Developer for costs or expenses not allowed under the terms of this Agreement (a "Determination). The City's right to inspect Records following a Determination shall be limited to the extent necessary to confirm the accuracy of the Determination, or the facts giving rise thereto. 7 Book: 1398 Page: 773 12. Restrictions on the Sale of Lots. The Developer shall not sell any property within the Improvement District prior to the receipt of the Certificate of Completion delivered by the City pursuant to Paragraph 2 of this Agreement. 13. General Provisions. A. No waiver of any provision of this Agreement will be deemed or constitute a waiver of any other provision, nor will it be deemed or constitute a continuing waiver unless expressly provided for by a written amendment to this Agreement signed by both the City and the Developer; nor will the waiver of any defect under this Agreement be deemed a waiver of any subsequent default or defaults of the same type. The City's failure to exercise any right under this Agreement, will not constitute the approval of any wrongful act by the Developer or the acceptance of any Improvements. B. The parties to this Agreement may amend or modify this Agreement only by written instrument duly executed by the parties hereto. C. No person or entity who or which is not a party to this Agreement will have any right of action under this Agreement. D. This Agreement constitutes the entire Agreement between the parties, and no statements, promises, or inducements that are not contained in this Agreement will be binding on the parties. This Agreement may not be assigned to any other parties without the prior written consent of the City. E. If any part, term, or provision of this Agreement is held by a court to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision, and the rights of the parties will be construed as of the part, term, or provision was never part of this Agreement. F. The City may file a copy of this Agreement in the office of the Register of Deeds for Saline County, Kansas. G. Nothing contained in this Agreement constitutes a waiver of the City's sovereign immunity under any applicable state law. H. This Agreement shall be construed in accordance with and governed by the laws of the State of Kansas. IN WITNESS WHEREOF, the parties hereunto have executed this Agreement this 14th day of June, 2021. (Seal) ATTEST: 8 STATE OF KANSAS COUNTY OF SALINE ) ) SS. ) Boole 1398 Page: 774 On~q.o . ~ 20fl, before me, the undersigned, a Notary Public in and for said state, personally appeared JoVonna A. Rutherford and Michael D. Schrage, proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument as City Manager and City Clerk, respectively, of the CITY OF SALINA, KANSAS, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. ft • CYNTHIA S. WOLFF 1!119 Notary Public -State of Kansas My Appl. Expires 0--:J.P. My commission expires: IV-f-j_D~ ~.~Liv~ ~1 NotaryPublic cyrr11110.. ~-wol.f!¥- 9 Boole 1398 Page: 775 IN WITNESS WHEREOF, the parties hereunto have executed this Agreement this 14th day of June, 2021 . STATE OF l{(tnSQS ) COUNTYOF J~ ) SS. ) Name: Kelly R. Dunn Title: President On "JU l ~ _B_, 20~ before me, the undersigned, a Notary Public in and for said state, pe=nally appeared Kelly R. unn, proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument as president, of Magnolia Hills, Inc., and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by he/her signature on the instrument the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ft • STEFANIE R. GOODMAN ~ Notary Public -State of Kansas My Appt. Expires -/ <l ~ My commission expires: 10 EXHIBIT A FORM OF REIMBURSEMENT REQUEST TO: City of Salina, Kansas Attention: City Manager Re: Markley Road Trail Improvement District Boole 1398 Page: 776 Terms not otherwise defined herein shall have the meaning ascribed to such terms in the Improvement District Development Agreement dated as of June 14, 2021 (the "Agreement") between the City and the Developer. In connection with the Agreement, the undersigned hereby states and certifies that: 1. Each item listed on Schedule I hereto is cost that was incurred in connection with the construction of the Improvements after June 14, 2021, and is an eligible cost pursuant to the Petition, the Advisability Resolution and the Act. Attached hereto are invoices and other supporting documentation showing proof that each cost listed in Schedule I was actually incurred by the Developer and is an eligible cost pursuant to the Petition, the Advisability Resolution and the Act. 2. There has not been filed with or served upon the Developer any notice of any lien, right of lien or attachment upon or claim affecting the right of any person, firm or corporation to receive payment of the amounts stated in this request, except to the extent any such lien is being contested in good faith. 3. The Improvements have been completed in a workmanlike manner and in accordance with all construction plans approved by the City. All necessary permits and approvals required for the work for which this certificate relates were issued and were in full force and effect at the time such work was being performed. 4. The Developer is not in default or breach of any term or condition of the Agreement, and no event has occurred and no condition exists which constitutes an event of default under the Agreement. Dated this 14th day of June, 2021. Kansas corporation By: Name: (·<f{V{ Z J IA.I-I~ Title: ff 'l ~1 ·~~w1 A-1 Boole 1398 Page: 777 Approved for Payment this J!/f!: day of ~, , 20 .k{_: By: Title: A-2 Boole 1398 Page: 778 EXHIBITB FORM OF CERTIFICATE OF COMPLETION The undersigned, MAGNOLIA HILLS, INC., a KANSAS CORPORATION (the "Developer"), pursuant to that certain Improvement District Development Agreement dated as of _, 20_, between the CITY OF SALINA, KANSAS (the "City") and the Developer (the "Agreement"), hereby certifies to the City as follows: 1. That as of , 20_, the construction of all Improvements (as such term is defined in the Agreement) have been completed in accordance with the Petition, the Advisability Resolution and the Agreement. 2. This Certificate of Completion is being issued by the Developer to the City in accordance with the Agreement to evidence the Developer's satisfaction of all obligations and covenants with respect to the construction of the Improvements. 3. At the Developer's request, the City shall record this Certificate with the Saline County Recorder of Deeds, as evidence that the Developer has satisfied all agreements and covenants to construct the Improvements pursuant to the Agreement. Terms not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement. IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this __ day of ____ ,20 __ CITY OF SALINA, KANSAS. Name: (Insert Notary Form and Legal Description if Certificate to be Recorded) B-1 Boole 1398 Page: 779 EXHIBITC INSURANCE REQUIREMENTS Pursuant to Paragraph 9 of the Agreement, the Developer shall obtain, pay for, and maintain -and shall require each of its authorized contractors and subcontractors to obtain and maintain -for the duration of the Agreement, policies of insurance meeting the following requirements: 1. General Requirements. A. Additional Insured. With the exception of any workers' compensation policies to be obtained by the Developer hereunder, all policies shall name the City of Salina ("City"), its agents, representatives, officers, officials, and employees as additional insured(s). Insurance for the additional insured shall extend to Products/Completed Operations and be as broad as the insurance for the named insured, including defense expense coverage, and, with respect to the commercial general liability policy required hereunder, shall be endorsed to apply as primary and non-contributory insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured(s). B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver of subrogation in favor of the City, its agents, representatives, officers, officials, and employees. C. Claims Made Policies. If coverage is written on a claims-made basis for any of the policies required by this Agreement, the Developer must maintain the coverage for a minimum of two (2) years from the date of final completion of all work under the Agreement. D. Premium and Deductible Expenses. The Developer shall be responsible for all premiums and retention or deductible expense for any and all policies required by this Agreement. 2. Specific Coverage Requirements. A. Commercial General Liability ("CGL"). The Developer shall maintain CGL coverage written on ISO Occurrence form CGOO 01 or an industry equivalent and shall cover liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Products and Completed Operations, Contractual Liability, Independent Contractors and Advertising Injury. The policy limits shall not be less than the following: • Each occurrence • General aggregate • Personal and Advertising Liability $1,000,000 $2,000,000 $1 ,000,000 The policy shall contain an endorsement that modifies the general aggregate to apply separately to each project. The Developer shall maintain the Products and Completed Operations liability coverage for a period of at least two (2) years after completion of all work under the Agreement. B. Business Automobile Liability ("BAL"). The Developer shall maintain BAL coverage written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by the Developer and include automobiles not owned by but used on behalf of the Developer. The BAL policy limits shall not be less than the following: C-1 Boole 1398 Page: 780 • Combined single limit $1 ,000,000 C. Workers' Compensation/Emolover's Liability. The Developer shall maintain workers' compensation and employer's liability coverage with policy limits not less than the following: • Workers' Compensation (Coverage Part A) o Statutory • Employer's Liability (Coverage Part B) o $100,000 each accident o $500,000 disease -policy limit o $100,000 disease -each employee IP C-2 ~~·