DEVELOPMENT AGREEMENT
(Waterline Extension)
This Development Agreement (the "Agreement")
is made this ________day of December, 2004, between the City of Lawrence, Kansas, a municipal
corporation (the "City"), Bristol Partners XVII, L.L.C., a Kansas limited liability company ("Bristol Partners"), and Timber Villas Development,
LLC, a Kansas limited liability company ("Timber Villas"). Bristol Partners and Timber Villas
are referred to collectively herein as the "Developers".
Recitals
A.
Bristol
Partners owns a tract of real estate in the City of Lawrence, Douglas County,
Kansas (the "Tract A"), which is described as follows:
Lot 1, Block 2, Lake View Addition, an addition to the
City of Lawrence,
Douglas County, Kansas.
B.
Timber Villas
owns a tract of real estate in the City of Lawrence, Douglas County, Kansas
(the "Tract B"), which is described as follows:
Lot 2, Block 2, Lake View Addition, an addition to the
City of Lawrence,
Douglas County, Kansas.
C.
The City
desires that the Developers agree to pay for the cost to engineer and construct
a portion of the
City's twelve inch (12") waterline main service (the "Waterline") at a future date, and the Developers agree to pay for the
cost to engineer and construct the Waterline at a future date, all in
accordance with the terms and conditions of this Agreement.
D.
The City and
the Developers acknowledge and agree that Tract A and Tract B (referred to collectively as the "Real Estate") are and shall be held,
transferred, sold, conveyed and occupied subject to the terms and conditions of this Agreement, for the
purposes of (i) enhancing and protecting the value of the Real Estate, (ii) encouraging and assisting the
orderly economic development and benefit of the Real Estate, (iii) increasing the public benefit to be derived
from the Real Estate, and (iv) protecting the owners, lessees and sublessees of property
against incompatible uses of surrounding property.
Agreement
NOW THEREFORE, in consideration of
the mutual promises, covenants and agreements set forth in this Agreement and other
valuable consideration, the parties agree as follows:
1. Bristol Partners' Obligation. At such time as either (i) the owner(s) of Tract A, Tract
B, and/or any parcel of property
located West of said Tracts A and B shall desire to connect to the Waterline, or (ii) the City shall desire to
extend the Waterline, the then existing owner(s) of Tract A shall, upon demand, pay for the cost to
engineer and construct that portion of the Waterline beginning at the southeast corner of Tract A, and extending
to the southwest corner of Tract A. The location of the waterline main
shall be generally along and adjacent to the southern
boundary of Tract A. Bristol Partners on behalf of itself, and its legal
representatives, successors, assigns and grantees, and all persons claiming by,
through, or under
them, hereby agrees, without further consideration, to grant such additional
permanent utility easements and temporary construction easements as the City
may determine are reasonably necessary to engineer and construct the Waterline
along and adjacent to the southern boundary of Tract A.
2.
Timber Villas's
Obligation. At such time as either (i) the owner(s) of Tract A, Tract
B, and/or any parcel
of property located West of said Tracts A and B shall desire to connect to the
Waterline, or (ii)
the City shall desire to extend the Waterline, the then existing owner(s) of
Tract B shall, upon demand,
pay for the cost to engineer and construct that portion of the Waterline
beginning at the southeast corner of Tract B, and extending to the southwest corner of Tract B. The
location of the waterline main shall be generally along and adjacent to the southern boundary of Tract
B. Timber Villas on behalf of itself, and
its legal representatives, successors, assigns and grantees, and all persons
claiming by, through, or under them, hereby
agrees, without further consideration, to grant such additional permanent
utility easements and
temporary construction easements as the City may determine are reasonably
necessary to engineer and construct the Waterline along and adjacent to the
southern boundary of Tract B.
3.
Run
with the Land. The Real Estate shall be held, leased, transferred,
sold, conveyed and occupied subject to the terms and conditions of this
Agreement. The terms and conditions of this Agreement shall run with the Real Estate and shall be
binding upon all parties having or acquiring any right, title or interest in the Real Estate, or any part
thereof, and shall inure to the benefit of all parties having or acquiring any right, title or interest
in the Real Estate.
4.
Purpose.
The Real Estate is made subject to this Declaration to ensure proper use
and appropriate development and improvement of the Real Estate; protect all
parties having or acquiring any right, title or interest in the Real Estate against such
improper development and use as might depreciate the value and use of the Real Estate;
and generally promote the welfare and safety of all parties having or acquiring any right, title or
interest in the Real Estate. This Declaration shall be liberally construed in
order to accomplish
the aforesaid purposes.
5.
Severability.
If any term or provision of this Agreement or the application of it to any person or circumstance shall to
any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not
be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to
the extent permitted by law.
6.
Recording.
The parties acknowledge and agree that this Agreement shall be recorded in the Office of the Register of
Deeds of Douglas County, Kansas, for the purpose of imparting notice of its contents to all future owners of
Real Estate.
7.
Enforcement.
The City and the owner(s) of Tract A, Tract B, and/or any parcel of property located West of said
Tracts A and B, shall have the right, acting jointly or severally, to sue for
and obtain a
prohibitive or mandatory injunction to prevent the breach, or to enforce the
observance of the terms and conditions of this Agreement. The failure to
enforce any of the terms and conditions of this Agreement at any time shall in no event be deemed a
waiver of the right to do so thereafter. Enforcement either to recover damages or
restrain violations shall be by proceedings at law or in equity against any
person or persons violating or attempting to violate any of the terms and
conditions of this Agreement.
In addition, if the owner(s) of
any Tract hereinabove described shall fail to perform the obligations, or make
the payments required by this Agreement, such obligations and payments may be
performed or made by the City and/or the owner(s) of the other Tract(s), and
the City and/or such other owner(s) shall have a lien for the cost of
performing such obligations or making such payments upon the Tract owned by the
owner having the duty to perform such obligations or make such payments, until
the same shall be fully performed or fully paid by the owner having such duty.
Notice of any lien may be filed in the office of the Register of Deeds of
Douglas County, Kansas. The lien shall be prior to all other liens except (i)
tax liens in favor of any political subdivision, municipal corporation, special
benefit district, or other state or federal taxes which are by law a lien on
such tract prior to previously recorded encumbrances thereon, and (ii) all sums
unpaid on a first mortgage of record. Any lien created hereunder may be
foreclosed by suit by the City and/or any Tract owner(s) in like manner as a
mortgage on real property.
8.
Modification.
This Agreement may be terminated, extended, modified, or amended only with
the written consent of the City and the Developers.
9.
State
Law. This Declaration shall be construed in accordance with the laws of
the State of Kansas.
10.
Severability.
The invalidity in whole or in part of covenants or restrictions, or any
paragraph, subparagraph, sentence, clause, phrase or word, or other provision
of this Declaration shall not affect the validity of the remaining portions
thereof.
11.
Captions.
The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit, modify, or supplement this Declaration
or the intent of any provision thereof.
12.
Construction.
Whenever the context so permits, the use of plural shall include the
singular, the singular the plural, and the use of any gender shall be deemed to
include all genders. This Declaration shall not be construed strictly for or
against any person or party hereto, but shall be interpreted based upon the
reasonable meaning of its language.
13.
Term
of the Agreement. This Agreement shall be effective from and after the
Effective Date for a period of twenty years (the "Termination
Date"). From and after the Termination Date, this Agreement shall
automatically expire without notice to, or any further acts by, either party,
and shall be of no further force and effect.
14.
Agreement
Not To Protest. The Developers hereby waive and relinquish any right
they may have under K.S.A. 12-6A06, and amendments thereto, to protest the
formation of a special assessment benefit
district for the Waterline on Tract A and/or Tract B, or adjacent right-of-way
thereto, for a period of thirty (30) years, and that such waiver shall
be a covenant running with Tract A and Tract B for said period of time and
shall be binding upon all successors and assigns.
15.
Binding
Effect. This Agreement shall, at all times, be binding upon and inure
to the benefit of the City, the Developers, and their respective legal
representatives, successors, grantees and assigns.
IN WITNESS
WHEREOF, the City and the Developers have caused this Agreement to
be executed as of
the Effective Date.
CITY OF
LAWRENCE, KANSAS
By:__________________________ Mike Rundle, Mayor
ATTEST:
_______________________________
Frank S.
Reeb, City Clerk
BRISTOL PARTNERS XVII, L.L.C., a Kansas limited liability
company
By:__________________________ Phillip A. Divilbiss,
Managing Member
TIMBER VILLAS DEVELOPMENT, LLC, a Kansas limited liability company
By:__________________________
Wally Dee Grisarnore, Managing Member
STATE OF
KANSAS, COUNTY OF DOUGLAS) ss:
The foregoing
instrument was acknowledged before me this___ day of December, 2004, by Mike Rundle, Mayor of the City of Lawrence, Kansas,
a municipal corporation, on behalf of said City of Lawrence, Kansas.
Notary Public
My
appointment expires:______________________________
STATE
OF KANSAS, COUNTY OF DOUGLAS) ss:
The foregoing instrument was acknowledged before me this___ day of December,
2004, by Phillip A. Divilbiss,
Managing Member of Bristol Partners XVII, L.L.C., a Kansas limited liability
company, on behalf of said limited
liability company.
Notary Public:_____________________________
My
appointment expires:___________________________
STATE
OF KANSAS, COUNTY OF DOUGLAS) ss:
The foregoing instrument was
acknowledged before me this___ day of December, 2004, by Wally Dee Grisamore, Managing Member of Timber
Villas Development, LLC, a Kansas limited liability company, on behalf of said limited liability
company.
Notary Public:_____________________________
My
appointment expires:___________________________