MAINTENANCE AGREEMENT
THIS AGREEMENT is made and entered into this 3rd day of July 1989, by and between the City Overland Park, a Kansas municipal corporation (the City.) and F&G Development Co., a Kansas corporation with two shareholders, Thomas R. French and John M. Groebe (the Developer").
WITNESSETH:
WHEREAS, Developer has entered into a contract to purchase a certain tract of undeveloped, unimproved land located within the boundaries of the City (the .Tract") more particularly described as follows:
See attached Exhibit .A.
WHEREAS, Developer's obligation to purchase the Tract is contingent upon zoning approval from City; and
WHEREAS, Developer desires to plat the Tract into a residential subdivision (the "Subdivision") and to sell lots to the public; and
WHEREAS, Developer further desires to create a common green area (the Common Area"); and
WHEREAS, the Common Area as presently contemplated (subject to final approval) contains three (3) lakes (the "Lakes") which are fed primarily by natural run-off and secondarily, if necessary, by supplemental outside sources. For purposes of this definition, "Lakes" shall include all storm drains, storm sewer pipes, inlet structures and walls associated with the drainage system located within the Subdivision as well as any and all appurtenances to the drainage system as well as all tracts of ground containing the Lakes; and
WHEREAS, in connection with its proposed platting of the Subdivision to be known as Willowbrook, Developer has requested the City to granted a variance from Chapter 1508 of the Overland Park Municipal Code that requires the construction of storm sewers to accommodate natural run-off (the Requested Variance"); and
WHEREAS, the City has raised certain concerns regarding the future maintenance of the Lake Areas; and
WHEREAS, as a stipulation to the Requested Variance, Developer has agreed to the terms, conditions and requirements described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements made herein, the parties hereto agree as follows:
ARTICLE I. DEVELOPER COVENANTS
Developer hereby agrees to the following terms, conditions and requirements which are a stipulation of the Requested Variance.
1.1 Within 180 days following the date of this agreement, Developer will file with the City a separate plat of the Common Area. Such plat will contain to the effect that the Common Area is private and for the use, benefit and enjoyment of the owners of the property of Willowbrook and that the Lakes are included in the Common Area with respect to Willowbrook.
1.2 On or before the 15th day of June, 1989, Developer will cause Willowbrook Homes Association to be duly formed as a Kansas not-for-profit corporation. The Articles of Incorporation will contain a specific provision to the effect that the corporation may not be dissolved without the express written consent of the City.
1.3 On or before the 1st day of July, 1989, but in all events prior to the consummation of the sale of any lots in Willowbrook Subdivision, Developer will cause to be recorded with the Register of Deeds of Johnson County, Kansas, a declaration covering all of the platted lots within Willowbrook and containing, in addition to other matters normally found therein, the following specific provisions regarding the Common Area and the Lakes:
(a) The declaration will describe the Lakes as one of the "Common Areas" of the Subdivision.
(b) The Homes Association Declaration will provide that one of the duties and obligations of the Willowbrook Homes Association (as opposed to one of its permissive powers) will be to properly maintain the Lakes, including, without limitation, maintaining landscaping and any improvements erected surrounding the Lakes and correcting the effects of material detrimental erosion or other damage caused by the flow of water into the Lakes from the surrounding property, including the dredging as is necessary from time to time of the Lakes.
(c) The Homes Association Declaration will require that the Willowbrook Homes Association will levy assessments against the lots within the Subdivision sufficient to pay for the maintenance of the Common Area and for all costs incurred by reasons of paragraph (d) or (e) of this section. A portion of each annual or monthly assessment will be placed into reserve for future maintenance of the Lake Areas and any shortfalls will be covered by a mandatory special assessment. The Willowbrook Homes Association will have an enforceable lien on the affected lot in the event the lot owner fails to pay any such assessment. All purchasers of lots will be given an outline summary of the maintenance obligation per this Agreement with regard to Common Areas.
(d) Each Declaration will contain a provision thereby releasing the City from any and all past, present or future liability for any damage that may be caused at any time to any real property or personal property, including, without limitation, any lot, residence or other improvement, or to the Lakes or Common Ares resulting from or related to, directly or indirectly, the City's granting of the Requested Variance or otherwise acting or failing to act with respect to the maintenance of the Lakes or Common Area or the City's permitting public storm water to enter the Lake Areas. The City will be further released from any and all past, present or future obligations to expend any public funds or to take any other action to maintain or improve the Lake Areas.
(e) The Homes Association Declaration will contain a provision requiring the Willowbrook Homes Association to indemnify and hold harmless the City, the Mayor, the members of the City Council and the employees and agents of the City from and against any and all losses, damages, costs and expenses (including reasonable attorneys' fees) that may be incurred or suffered by any of them as a result of or in connection with any claims that may be asserted against any of them in connection with the Lake Areas. The Willowbrook Homes Association will further be required to promptly reimburse the City for any public funds that the City may expend with respect to maintenance of or improvement of the Lake Areas or Common Area in the event the Homes Association fails to maintain the Lake Areas, although the City is under absolutely no obligation to so maintain or improve.
(f) Each Declaration will name the Developer and the City as third party beneficiaries of all provisions therein relating to the Lake Areas and Common Area and will give to the Developer and to the City the right to enforce all restrictions, obligations and other provisions regarding to the Lake Areas and Common Area.
(g) Each Declaration will contain a provision requiring the written consent of the City to any termination of the Declaration in its entirety or to any amendment, modification or termination of any provision regarding the Lake Areas or Common Area.
(h) If in the future the City requests that the Lakes be dedicated to the City for use as a public lake, and at the time of their request, the Association is in default of its obligations hereunder, the Association will effect such dedication of its interest in the Lakes without any costs or charge to the City (except payment of the market value of any improvements which immediately surround the Lakes).
1.4 The Homes Association Declaration shall contain a provision requiring that the Willowbrook Homes Association will maintain reasonable and adequate liability insurance to insure against the risks associated with the maintenance of the Common Areas.
1.5 Within 45 days following the recording of a final plat for each phase of the Subdivision, but in all events prior to the sale of any lots within the applicable phase of the Subdivision, Developer will cause to be recorded with the Register of Deeds of Johnson County, Kansas, a Declaration of Restrictions and a Homes Association Declaration covering all of the platted lots within such phase of the Subdivision and containing special provisions regarding the Common Area and Lake Areas similar to the provisions set forth in Section 1.3 above.
1.6 Developer will retain title to the Lakes until such time as substantially all of the lots within the Subdivision have been sold to the public. Developer will then transfer title to the Homes Association.
1.7 Developer will cause the Homes Association to enter into an agreement to establish a sharing arrangement for the maintenance and other costs associated with the Lakes. Developer's obligations to contribute periodically to the maintenance fund will decrease over time and will cease once Developer transfers title to the Lakes to the Homes Association.
ARTICLE II. GRANT OF REQUESTED VARIANCE
By authorization of the City Council at its meeting held on July 3, 1989, the City has granted the Requested Variance upon the execution of this Agreement by both parties hereto.
ARTICLE III. MISCELLANEOUS
3.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and to the grantees of Developer.
3.2 This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas.
3.3 This Agreement shall be filed of record in the office of the Register of Deeds of Johnson County, Kansas.
ARTICLE IV. RECORDING OF DOCUMENT
The attorney for the City shall cause this agreement to be filed with the Register of Deeds of Johnson County, Kansas. Each party hereto shall receive a duly executed copy of this agreement for its official records.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
CITY OF OVERLAND PARK, KANSAS
BY___________________________
Ed Eilert, Mayor
____________________
.Bernice Crummett
City clerk / Finance Director
APPROVED AS TO FORM:
________________________
Jane Neff-Brath
Assistant City Attorney
F & G DEVELOPMENT CO., a
Kansas Corporation
By _______________________
Thomas R. French
By _______________________
John M. Grobe
STATE OF KANSAS) )
) SS:
COUNTY OF JOHNSON) )
BE IT REMEMBERED that on this 10th day of July , 1989, before me, the undersigned, a Notary Public in and for the foregoing County and State, came ED EILERT, Mayor of the City of Overland park, Kansas, a municipal corporation duly organized, incorporated and existing under and by virtue of the laws of the state of Kansas, who is personally known to me to be the same person who executed as such officer the foregoing instrument of writing on behalf of said corporation, and said person duly acknowledged the execution of same to be the act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year last above written.
__________________
Notary Public
'
My appointment expires:
9-11-90____________
STATE OF KANSAS )
)
COUNTY OF JOHNSON )
BE IT REMEMBERED that on this 6th day of July, 1989, before me, the undersigned, a Notary Public in and for the foregoing County and state, personally appeared THOMAS R. FRENCH who is personally known to me to be the same person who executed the foregoing instrument in writing and acknowledged that same was executed as his own free act and deed, and on behalf of F & G Development Co., a Kansas corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year last above written.
__________________
Notary Public
My appointment expires:
9-11-90______________
STATE OF KANSAS )
) SS:
COUNTY OF JOHNSON )
BE IT REMEMBERED that on this 7th day of July, 1989, before me, the undersigned, a Notary Public in and for the foregoing County and state, personally appeared THOMAS R. FRENCH who is personally known to me to be the same person who executed the foregoing instrument in writing and acknowledged that same was executed as his own free act and deed, and on behalf of F & G Development Co., a Kansas corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year last above written.
__________________
Notary Public
My appointment expires:
9-11-90______________
EXHIBIT A
Description
A part of the SE1/2 of Section 36. Township 13 South, Range 24 East, in the City of Overland Park, Johnson County, Kansas; being more particularly described as follows:
Beginning at the SE corner of the SE1/2 of aforementioned Section 36-13-24; thence S. 87°47'35" W. along the South line of the said SE1/2, a distance of l,449.97 feet to a point, said point being l25.0l feet Wes of the SW corner of the E1/2 of the SE1/2 of said Section 36 as measured along said South line; thence N. 24°04'16" W. a distance of 201.49 feet to a point; thence N. 2°13'06" W., a distance of 100.00 feet to a point; thence N. 70°05' 00" E., a distance of 209.94 feet to a point in the West line of the E1/2 of the aforementioned SE1/2 thence N. 64°08'00" E., a distance of 106.00 feet to a point thence N. 37°05'00" E., a distance of 340.00 feet to a point; thence N. 2°26'50" E., a distance of 300.00 feet to a point; thence N. 25°45'00" E. a distance of 375.00 feet to a point, said point being the SW corner of Lot 4, Block 10 of Nottingham. Forest South, Fifth Plat, a subdivision in the said City of Overland Park; thence N. 87°40'56" E. along the South line of said Lot 4 and its Easterly extension thereof, a distance of 370.00 feet to a point; thence N. 2°19'04" W., a distance of 185.00 feet to a point; thence N. 34°00'00" W., a distance of 85.00 feet to a point; thence N. 60°00'00" E., a distance of 180.00 feet to a point; thence S. 89°l2'35" E., a distance of 150.00 feet to a point; thence S. 67°44'06" E., a distance of 126.98 feet to a point; thence N. 87°40'56" E., a distance of 60.00 feet to a point in the East line of the SE1/2 of aforementioned Section 36-13-24, thence S. 2819'04"E. along the said East line. ~ distance of 1,568.36 feet to the Point of Beginning and containing 36,9062 acres more or less.